Hodge v. Federal Bureau of Investigation ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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BENNY LEE HODGE, )
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Plaintiff,
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v. ) Civil Case No. 08-403 (RJL)
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FEDERAL BUREAU OF
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INVESTIGATION, et al.,
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Defendants.
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)
h-
MEMORANDUM OPINION
(February fL, 2011) [#15 and #18]
Plaintiff Benny Lee Hodge ("plaintiff' or "Hodge") brings this action against the
Federal Bureau ofInvestigation ("FBI") and U.S. Department of Justice ("DOJ")
(collectively "defendants") for failure to disclose information pursuant to the Freedom of
Information Act ("FOIA"). Plaintiff seeks material in order to collaterally challenge two
convictions that have placed him on death row in Kentucky. Before this Court is
defendants' Motion for Summary Judgment and plaintiffs Cross-Motion for Partial
Summary Judgment. After due consideration of the parties' pleadings, the relevant law,
and the entire record herein, defendants' motion is GRANTED and plaintiffs motion is
DENIED.
BACKGROUND
On October 10, 2002, plaintiff, through counsel, submitted a FOIA and Privacy
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Act request to the FBI Louisville Field Office ("LSFO") seeking "all records maintained
by [the] agency pertaining to Mr. Hodge ... " First Hardy Decl. to Def.' s Mot. for
Summ. J., Mar. 9, 2009, ("Hardy DecL") ~ 13; Hardy Decl., Ex. A. Having been
sentenced to death in Kentucky, plaintiff sought the records in order to collaterally
challenge his convictions. PL's Opp'n and Cross-Mot. for Partial Summ. J. ("PL's
Opp 'n") at 4, n.1. About one year later, the LSFO informed plaintiff that 569 pages had
been reviewed in response to his request and that 361 pages would be released. Hardy
DecL `` 17-19. The LSFO also advised plaintiff that certain documents were either
exempt from release or contained redactions pursuant to the Privacy Act of 1974, 5
U.S.C. § 552aU)(2), and FOIA, 5 U.S.C. § 552(b)(2), (b)(7)(C), (b)(7)(D), and (b)(7)(E).
Hardy DecL ~ 19. On January 7, 2004, plaintiff appealed the LSFO's decision to
withhold/redact documents to the DOJ Office of Information and Privacy ("OIP").
Hardy Decl. ~ 20. On March 6,2005, the DOJ OIP affirmed the FBI's decision. Hardy
Decl. ~ 22.
Three years later, plaintiff filed this complaint, asking the Court to order the
release of all documents responsive to plaintiff s initial request. Koyama Decl. to PI.' s
Opp'n, May 15,2009, ("Koyama Decl.") ~ 5. The FBI subsequently conducted a second
search for responsive documents. After a review of all potentially responsive documents,
the FBI determined that a total of 1,670 documents were, in fact, responsive to plaintiff's
request. Koyama Decl. `` 9-11. From June 30, 2008 to September 12,2008, over the
course of three productions, the FBI released these documents, again redacting and
withholding certain information under the Privacy Act and various FOIA provisions.
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Hardy Decl. 1 `` 24-26; Koyama DecI. `` 9-11. Later, while preparing its motion to for
summary judgment, the FBI conducted yet another review of potentially responsive
documents and identified an additional 92 responsive pages, which were released to
plaintiff. Koyama DecI. ~ 19; Hardy Decl. ~ 40. Ultimately, the FBI determined that a
total of 1,762 pages were responsive to plaintiffs October 10,2002 request.
On March 10,2009, defendants filed a motion for summary judgment contending
that "all reasonably segregable documents not subject to exemption" had been disclosed.
Def.'s Mot. for Summ. 1. ("Def.'s Mot.") at l. Along with the motion, defendants filed
an affidavit by David M. Hardy ("Hardy Declaration"), Section Chief of the FBI's
Records Management Division in charge of responding to FOIA requests. Along with
giving background on the FBI's Central Records System ("CRS") and Electronic
Surveillance ("ELSUR") Indices, the Hardy Declaration explains the steps taken by the
FBI in conducting its search and outlines its redaction and withholding decisions. See
Hardy Decl.
On May 15,2009, plaintiff filed a cross-motion for summary judgment, asserting
that the Hardy Declaration inadequately explains why the FBI withheld and redacted
certain documents. See PI. Opp'n at 12-13. Plaintiff argues that because he cannot
address, in fairness, the merits of the FBI's reasons for exempting certain documents
from disclosure, defendants must produce an adequate index pursuant to Vaughn v.
Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973). See PI. Opp'n at 15. Plaintiff further
contends that defendants have not shown that the FBI conducted an adequate search for
responsive documents, did not reasonably segregate non-exempt information from
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statutorily exempt information and did not establish that any of the exemptions claimed
were appropriate. For all the reasons set forth below, this Court disagrees and grants
summary judgment in favor of defendants.
ANALYSIS
I Summary Judgment Standard
"When assessing a motion for summary judgment under FOIA, the Court shall
determine the matter de novo." Judicial Watch, Inc. v. Us. Dep't 0/ Homeland Sec., 598
F. Supp. 2d 93,95 (D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B)). Summary judgment is
appropriate when the record demonstrates that there is no genuine issue of material fact in
dispute and that the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ.
P.56(a). The moving party bears the burden, and the court will draw "all justifiable
inferences" in the favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). Nevertheless, the non-moving party "may not rest upon the mere
allegations or denials of his pleading, but ... must set forth specific facts showing that
there is a genuine issue for trial." Id. at 248 (internal quotations omitted). Factual
assertions in the moving party's affidavits may be accepted as true unless the opposing
party submits its own affidavits, declarations or documentary evidence to the contrary.
Neal v. Kelly, 963 F .2d 453, 456 (D.C. Cir. 1992).
In a FOIA action, an agency must "demonstrate beyond a material doubt that its
search was 'reasonably calculated to uncover all relevant documents. '" Valencia-Lucena
v. us. Coast Guard, 180 FJd 321,325 (D.C. Cir. 1999) (quoting Truitt v. Dep't a/State,
897 F.2d 540, 542 (D.C. Cir. 1990)). To meet its burden, the agency may submit
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affidavits or declarations that explain in reasonable detail the scope and method of the
agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (per curiam). In the
absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate
an agency's compliance with FOIA. Id. at 127. However, if the record "leaves
substantial doubt as to the sufficiency of the search, summary judgment for the agency is
not proper." Truitt, 897 F.2d at 542.
Further, with respect to an agency's non-disclosure decisions, the court may rely
on affidavits or declarations if they describe "the justifications for non-disclosure 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. '" Sa/eCard Servs., 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)). "Ultimately, an agency's justification for invoking a FOIA exemption
is sufficient ifit appears logical or plausible." Larson v. Us. Dep 't o/State, 565 F.3d
857, 862 (D.C. Cir. 2009) (internal quotations omitted).
II. The Epperson Documents
As an initial matter, plaintiff bases much of his position on a FOIA production to
Mr. Roger Dale Epperson ("Epperson"), plaintiffs co-defendant in his underlying
criminal case. Plaintiff has, therefore, provided a July 12,2005 FIOA cover letter along
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with roughly 125 pages of investigative material. Komp Decl. to PI. 's Opp'n, Ex. R
("Komp Decl., Ex. R"). Plaintiff claims that the letter and investigative material were
produced together in response to a FOIA request made by Epperson's counsel. Plaintiff
further claims that the 125 pages include material relevant to plaintiffs own FOIA
request, but that was not released pursuant to plaintiffs request or, ifit was released, was
heavily redacted. Defendants, in response, argue that the Epperson documents were not,
in fact, produced in conjunction with the July 12,2005 FOIA cover letter, and, even if
they were produced in conjunction with the FOIA request, the production was clearly
inadvertent. Defendants conclude, therefore, that the 125 pages have no bearing on
plaintiffs FOIA request. I agree.
Defendants have submitted two additional Hardy Declarations addressing the July
12,2005 FOIA release ("First Supplemental Hardy Declaration" and "Second
Supplemental Hardy Declaration"). See Hardy Decl., Jul. 9,2009 ("Supp. Hardy Decl.
1"); Hardy Decl., Sept. 15, 2009 ("Supp. Hardy Decl. 2"). In light of plaintiffs proffer
of the Epperson documents, the FBI performed a page by page comparison of the FBI's
own electronic record of what was released to Epperson with the July 12,2005 cover
letter and the 125 documents put forth by plaintiff. The First Supplemental Hardy
Declaration states clearly that the two sets of documents do not match. Supp. Hardy
Decl. 1 ~ 7. In other words, the FBI's own electronic records indicate that 125 pages
produced by plaintiff were not the same set of documents actually produced in
conjunction with the July 12,2005 letter. Supp. Hardy Decl. 1 ~ 7.
This is clearly supported by the record. Indeed, the July 12,2005 cover letter
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specifically states that 450 pages were released pursuant to Epperson's FOIA request.
Komp Decl., Ex. R. This is facially inconsistent with the plaintiffs proffered production,
which only amounts to approximately 125 pages. Further, the FOIA cover letter states
that certain information within the production was deleted or withheld under various
Privacy Act and FOIA exemptions. Komp Decl., Ex. R. The letter explains that the
applicable exemptions are noted next to each excision within the production set, and then
list the specific exemptions referenced. Komp Decl., Ex. R. Despite this explanation,
clearly exempted information within the proffered documents was not redacted. In fact,
the 125 pages submitted by plaintiff include no redactions or notations at all. Komp
Decl., Ex. R. In sum, this Court finds that a reasonable jury could not conclude that that
the 125 pages submitted by plaintiff were deliberately released as part of the July 12,
2005 FOIA production. 1 These documents, therefore, were not released into the public
1 Plaintiff puts forth various other arguments in an attempt to show that the Epperson
production was made in conjunction with the July 12,2005 letter. In particular, plaintiff
submits declarations by Epperson's former and present counsel stating that the 125 pages
are the documents produced in response to their FOIA request. At best, for the reasons
set forth above, these declarations support defendants' argument that the documents were
produced by mistake. Irrespective, these declarations are to no avail as they are
contradicted by the clear evidence on the record. In fact, plaintiff argues that a FOIA
cover letter sent to plaintiffs own counsel proves that the FBI makes both interim and
final productions of materials. Koyama Decl., Ex. E. Plaintiff, therefore, argues that this
shows that it is possible that only 125 pages were produced in conjunction with the July
12 letter, regardless of the fact that the letter states that the FBI is releasing 450 pages.
PI. Reply at 5-6. The letter cited as an example by plaintiff to support this position,
however, was sent to plaintiff in conjunction with a production that the FBI made to
plaintiff on September 12,2008. Koyama Decl., Ex. E. The September 12 letter states
on its face that 481 pages were being released. Koyama Decl., Ex. E. This number is
consistent with the number of pages actually released on September 12,2008. See
Koyama DecI. ~ 26. For plaintiffs argument to succeed, the number of pages actually
produced would have to be some number smaller than 481 pages. In addition, Hardy's
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domain and do not affect any subsequent FOIA disclosures and related claims under the
FOIA exemptions. See Medina-Hincapie v. Dep 't ofState , 700 F.2d 737, 742, n.20 (D.C.
Cir. 1983).
III Adequacy of the Hardy Declaration
FOIA's purpose is to "implement a general philosophy of full agency disclosure"
by making agency "opinions, statements of policy, interpretations, [] staff manuals, and
instructions that are not published in the Federal Register" available for public inspection.
us. Dep 't ofJustice v. Reporters Comm. for Freedom ofPress, 489 U.S. 749, 754
(1989) (internal quotations omitted). When an individual seeks a FOIA disclosure from a
federal agency, and the agency, in tum, claims one of various statutory exemptions, an
"asymmetrical distribution of knowledge" develops. King v. Us. Dep 't ofJustice, 830
F.2d 210,218 (D.C. Cir. 1987). This renders the opposing party "helpless to controvert"
the validity of the agency's exemption. Vaughn, 484 F.2d at 826. To remedy this
asymmetry, the agency must prove an exemption's merits through use of a Vaughn index
or its functional equivalent. See Judicial Watch Inc. v. FDA, 449 F.3d 141, 146 (D.C.
Cir.2006). The agency satisfies its burden so long as the index is specific, detailed, and
separable enough to "adequately describe each withheld document, state which
exemption the agency claims for each withheld document, and explain the exemption's
declarations makes clear that the FBI's use of the word "interim" does not mean that
some the processed documents were not released. As used in the FOIA cover letter,
"interim" means that not all potentially responsive documents have been processed.
Supp. Hardy Decl. 2 ~ 6. All processed documents not falling within an exemption were
released. The letter, in addition to the FBI's electronic records, show that all 450
processed documents were released together. Plaintiffs arguments, therefore, must fail.
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relevance." Johnson v. Exec. Office/or Us. Attys., 310 F.3d 771,774 (D.C. Cir. 2002).
Here, the Hardy Declaration, together with coded references within the
production, is legally sufficient to satisfy the government's burden. In particular, the
Hardy Declaration explains that the FBI employs codes in order to reference its reasoning
for why documents are redacted or withheld. Hardy Decl. `` 41-43. The codes appear in
the production set of all responsive documents, which is appended to the Hardy
Declaration and Bates-stamped HODGE 1-1761. Hardy Decl. ~ 41. Thus each redaction
or withheld page2 is annotated with one or more codes, which refer back to detailed
explanations laid out in the Hardy Declaration. Hardy Decl. `` 41-43; see also Def.'s
Opp'n to Pl.'s Reply ("Def.'s Opp'n") at 13-14. The explanations in the Hardy
Declaration contain the statutory provisions under which the information is withheld as
well as the subcategories, which explain in more detail what the information is and why
the information should be exempted under the applicable statutory provisions. See Hardy
Decl. ~ 43. 3 The Hardy Declaration also includes footnotes listing the Bates numbers that
correspond with the subcategory of exempted information. See, e.g., Hardy Decl. `` 51,
52, 55, 62.
2 Withheld pages within the production set appear as blotted-out pages with appropriate
Bates-stamps.
3 For instance, the Hardy Declaration explains that three subcategories of information
were withheld under FOIA Exception 7(D). Hardy Decl. `` 76-85. With respect to the
third subcategory, coded "(b)(7)(D)-3," the Hardy Declaration explains that information
withheld related to two third party witnesses who provided information to the FBI under
the express assurance of confidentiality. Hardy Decl. ~ 84. The Hardy Declaration goes
on to explain the circumstances under which such assurance was given and how it was
apparent from the documents that the parties were given such assurances. Hardy Decl. ``
84-85.
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Thus, the FBI's Hardy Declaration is sufficiently specific, detailed, and separable
to satisfy defendants' burden under Vaughn because the declaration provides "a
reasonable basis to evaluate [each] claim of privilege." See Judicial Watch, 449 F.3d at
146; see also Fischer v. Us. Dep't ofJustice, 596 F. Supp. 2d 34, 43-44 (D.D.C. 2009).
Indeed, because the function, and not the form, of the index is dispositive, our Circuit has
upheld similar agency declarations coupled with coded categories, in lieu of Vaughn
indices. See Judicial Watch, 449 F.3d at 150; Keys v. Us. Dep't ofJustice, 830 F.2d
337,349-50 (D.C. Cir. 1987).4
IV. The FBI's Searchfor Responsive Documents
An agency's search is adequate if its methods are reasonably calculated to locate
records responsive to a FOIA request. See Oglesby v. Us. Dep't of the Army, 920 F.2d
57,68 (D.C. Cir. 1990). As such, an agency need not search every records system as
long as it conducts "a reasonable search tailored to the nature of a particular request."
Campbell v. us. Dep't ofJustice, 164 F.3d 20,28 (D.C. Cir. 1998). Indeed, "the
adequacy of a FOIA search is generally determined not by the fruits of the search, but by
4 The cases upon which plaintiff relies are inapposite. Unlike King v. Us. Dep 't of
Justice, the Hardy declaration contains citations to the 1,761 page Bates-stamped
production, making it easy for this Court and plaintiff to locate and match respective
documents with the FBI's justifications for non-disclosure. See 830 F .2d 210, 220-21
(D.C. Cir. 1987) (holding that an index is insufficient where citations in an affidavit are
absent and thus fail to direct the reader to the coded categories purported to justify the
exemption). Further, unlike Schoenman v. FBI, the FBI's index here describes, in full,
the nature of the documents withheld. See 604 F. Supp. 2d 174, 197-98 (D.D.C. 2009)
(finding that disorganized affidavits that fail to provide any functional description of the
withheld material will constitute an inadequate agency showing for Vaughn index
purposes). Ultimately, so long as the agency's index provides "a reasonable basis to
evaluate the claim of privilege," it is legally sufficient to satisfy the agency's burden.
Judicial Watch, 449 F.3d at 146.
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the appropriateness of the methods used to carry out the search." Iturralde v.
Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003); see also Weisbergv.
Us. Dep't ofJustice, 705 F.2d 1344, 1351 (D.C. Cir. 1983).
Here, the Hardy Declaration sufficiently demonstrates the FBI's compliance with
FOIA's search requirements. See Perry, 684 F.2d at 127. As the Declaration explains,
the FBI maintains a Central Records System ("CRS"), which consists of "administrative,
applicant, criminal, personnel, and other files compiled for law enforcement purposes."
Hardy Decl. ~ 27. While CRS serves as an investigative tool, it is also used in
responding to FOIA requests. Hardy Decl. ~ 27. To seach CRS, the FBI uses a
mechanism called the Automated Case Support System ("ACS"). Hardy Decl. ~ 27.
ACS, in tum, retrieves CRS records through the use of General Indices, which fall into
two categories, "main" entries, which "carr[y] the name corresponding with a subject of a
file contained in the CRS," and "reference" entries, which "are generally only a mere
mention or reference to an individual, organization or other subject matter, contained in a
document located in another 'main' file on a different subject matter." Hardy Decl. ~ 29.
Generally, "ACS consists of three integrated, yet separately functional, automated
applications that support case management functions for all FBI investigative and
administrative cases." Hardy Decl. ~ 31. These applications are Investigative Case
Management ("ICM"), which "provides the ability to open, assign and close investigative
and administrative cases as well as set, assign, and track leads," the Electronic Case File
("ECF"), which "serves as the central repository for the FBI's official text-based
documents," and the Universal Index ("UNI"), which provides "a complete subject/case
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index to all investigative and administrative cases." Hardy Decl. ~ 31. The FBI Special
Agent assigned to the investigation and the Supervisory Special Agents in the field and at
headquarters decide whether to index names other than subjects, suspects and victims.
Thus, only "information considered to be pertinent, relevant, or essential for future
retrieval" is indexed. Hardy Decl. ~ 32.
As the Hardy Declaration further explains, electronic surveillance records may be
searched through the FBI's ELSUR Indices. "ELSUR Indices are used to maintain
information on subjects whose electronic and/or voice communications have been
intercepted as the result of a warrantless and/or consensual ELSUR or a court-ordered
(and/or sought from the Court) ELSUR conducted by the FBI." Hardy Decl. ~ 33.
With respect to plaintiffs request, the FBI conducted searches ofCRS, ELSUR
and its Laboratory Division in Quantico, Virginia. Hardy Decl. `` 37-38. The search of
CRS used variations ofplaintiffs name, including the phonetic breakdown of his first,
middle and last names, as well as other means of identification, including date of birth,
place of birth, and Social Security Number. Hardy Decl. ~ 37. This search returned 6000
pages of potentially responsive records. Hardy Decl. ~ 39. The FBI then reviewed each
page to identify documents that were, in fact, responsive. Hardy Deci. ~ 39. Neither the
search of ELSUR nor that of the Laboratory Division yielded any results. Hardy Deci. ~
38.
Plaintiff raises various challenges to the adequacy of the FBI search. First,
plaintiff notes that the Hardy Declaration does not provide a "detailed account of how the
responsive documents for Mr. Hodge's particular request were collected." PI. Opp'n at
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19. This allegation, however, is contradicted by the Hardy Declaration itself, which
explains the comprehensive nature of the databases searched, particularly the CRS, and
explains the various identifying terms used in the actual search. Hardy Decl. `` 37-38. 5
Plaintiff further argues that documents contained in the 125 pages submitted in relation to
the Epperson FOIA request prove that the search was inadequate. However, plaintiff can
only identify one five-page report that was not released to plaintiff through plaintiffs
own request. See Koyama Decl. ~ 30; Ex. Q. The Hardy Declaration, on the other hand,
notes that 6000 potentially responsive documents were identified as a result of its search.
Five pages out of 6000 is hardly enough to create "substantial doubt" regarding the
sufficiency of the search. See Truitt, 897 F .2d at 542. Ultimately, the results of a search
do not determine whether the search is adequate. See Hornbostel v. us. Dep't of the
Interior, 305 F. Supp. 2d 21,28 (D.D.C. 2003).6
The procedures described in the Hardy Declaration explain in reasonable detail the
5 Contrary to plaintiffs argument, FOIA does not require an agency to disclose who
actually conducted the search. See Perry, 684 F.2d at 126. Indeed, the case cited by
plaintiff merely lists the fact that the agency did disclose who conducted the search as
support for a finding that the search was adequate. It does not require such detail. See
Consumer Fed'n ofAm. v. Us. Dep 't ofAgric., 539 F. Supp. 2d 225,227 (D.D.C. 2008).
6 Plaintiffs remaining arguments are equally unpersuasive. For instance, plaintiff alleges
that defendants did not identify whether any aliases were used as search terms. However,
as defendants point out, plaintiff did not identify any aliases (or even the fact of possible
aliases) in his FOIA request. Thus, the FBI was under no obligation to search for those
aliases. See Kidder v. FBI, 517 F. Supp. 2d 17, 23-24 (D.D.C. 2007). As noted above,
the search conducted by the FBI was tailored to plaintiffs own request. Finally, the
Hardy Declarations sufficiently explains why documents that were determined to be
potentially responsive were ultimately found non-responsive and why certain documents
were released with the filing of defendants' motion for summary judgment. Hardy Decl.
`` 39-40. Neither of these circumstances indicates bad faith. See Meeropol v. Meese,
790 F.2d 942, 953 (D.C. Cir. 1986).
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scope and method of the agency's search. See Perry, 684 F.2d at 126. It is further
reasonable that documents pertaining to plaintiff - who was a suspect in an FBI
investigation - would be found within CRS files and ELSUR Indices, precisely because
these are central repositories of infonnation relating to investigations. See Campbell, 164
F.3d at 28. That no documents were found to be responsive on the ELSUR Indices or at
the Laboratory Division is not determinative of the sufficiency of the search. See
Iturralde, 315 F.3d at 315; see also SafeCard Servs., 926 F.2d at 1201. Further, it seems
obvious that the databases searched allowed the FBI to conduct a search by using an
individual's name or other identifiable information - which is, indeed, appropriate given
plaintiffs request for all records "pertaining to Mr. Hodge." See Hardy Decl., Ex. A.
Thus, the search was reasonably tailored to plaintiffs request. See Campbell, 164 F.3d at
28.
V. Segregability
Plaintiff also claims that defendants have not shown that non-exempt infonnation
was segregated from exempt information and properly released as required by FOIA. PI.
Opp'n at 26-28. Indeed, if an agency claims that a document is exempt under FOIA, any
reasonably segregable infonnation must be released after excising the exempted
infonnation, unless the non-exempt infonnation is inextricably intertwined with the
exempt information. Trans-Pac. Policing Agmt. v. u.s. Customs Serv., 177 F.3d 1022,
1027 (D.C. Cir. 1999).
The Hardy Declaration adequately states that "the FBI carefully examined the
1,762 pages of responsive records" and released all reasonably segregable non-exempt
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information. Hardy Dec1. ~ 89; see also Hardy Decl. ~ 41 ("Every effort was made to
provide plaintiff with all material in the public domain and with all reasonably segregable
portions of released materia1."). In the absence of contrary declarations by plaintiff or
specific cites to potentially unsegregated documents, the Hardy Declaration is afforded
the presumption of good faith. See SafeCard Servs., 926 F.2d at 1200. 7 Further,
plaintiffs claim that large chunks of material are redacted with cites to various
exemption and, therefore, evidences defendants' failure to segregate, is to no avail. See
P1. Opp'n at 28. Because the Hardy Declaration and annotations identify the exemptions
claimed for each individual document and, indeed, for each redaction, defendants have
met their burden under the law of our Circuit. See Morley v. CIA, 508 F.3d 1108, 1123
(D.C. Cir. 2007). Plaintiffs reliance on Vaughn to challenge these redactions is
misplaced. As the Vaughn Court noted, the agency need only devise an indexing system
that subdivides "large" documents into "manageable parts cross-referenced to the
relevant portion of the Government's justification." Vaughn, 484 F.2d at 827. Here,
annotations have been placed by each redaction within each page. See Koyama Decl.,
Ex. M. Further, given the nature of the material- investigative reports - it is not
surprising that information would fall within multiple exemptions. Cf Vaughn, 484 F.2d
7 Plaintiff has submitted one exhibit as evidence that the FBI's redactions were excessive
under the exemptions claimed. The exhibit is an FBI investigative report, FD-302, and as
indicated by the non-redacted information on the page, documents an interview
conducted during an investigation. Koyama Decl., Ex. M. The FBI's annotations, which
indicate the exemptions claimed, together with the non-redacted information, are
sufficient for this Court to assess whether defendants have properly invoked the
exemptions. See infra Sec. VI. This Court finds, therefore, that nothing in the proffered
exhibit controverts the Hardy Declaration's claims.
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at 827-28. The Hardy Declaration is thus sufficient to satisfy this Court's finding that all
reasonably segregable non-exempt material has been released.
VI FOIA Exemptions
Under the law of our Circuit, "[i]f an agency's statements supporting exemption
contain reasonable specificity of detail as to demonstrate that the withheld information
logically falls within the claimed exemption and evidence in the record does not suggest
otherwise, ... the court should not conduct a more detailed inquiry to test the agency's
judgment and expertise or to evaluate whether the court agrees with the agency's
opinions." Larson, 565 F.3d at 865. Here plaintiff challenges defendants' invocation of
FOIA Exemptions 3, 6, 7(C) and 7(D). Plaintiff fails, however, to put forth any evidence
to counter the Hardy Declaration's detailed explanation regarding these claimed
exemptions. 8 Therefore, based on the Hardy Declaration, this Court finds, for the
following reasons, that defendants' justifications for invoking these FOIA exemptions are
sufficient under the law of this Circuit. See id. at 862.
A. Exemption 3
Exemption 3 allows an agency to withhold information otherwise exempted by
statute. 5 U.S.C. § 552(b)(3). Here, the relevant statute is Federal Rule of Criminal
Procedure 6(e), which relates to matters "occurring before the grand jury." Fed. R. Crim.
P.6(e). In withholding information under Rule 6(e), our Circuit has held that the "the
touchstone is whether disclosure would tend to reveal some secret aspect of the grand
8 Plaintiff does not challenge Exemptions 2, 7(E) and 7(D) as it relates to the FBI's use of
Source Symbols Numbers and/or information provided by a Source Symbol Numbered
informant. PI. Opp'n at 8.
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jury's investigation, such matters as the identities or addresses of witnesses or jurors, the
substance of testimony, the strategy or direction of the investigation, the deliberations or
questions of jurors, and the like." Stolt-Nielsen Transp. Grp. LTD. v. United States, 534
F.3d 728, 732 (D.C. Cir. 2008) (citations omitted).
The Hardy Declaration clearly states that any information withheld under
Exemption 3IRuie 6(e) "consists of names of third-party individuals who were either
subpoenaed to provide information directly related to the criminal activity of Benny Lee
Hodge or actually testified before a Federal Grand Jury." Hardy Deci. ,-; 55.
Nonetheless, plaintiff claims that defendants' redactions under Exemption 3 are
excessive. PI. Opp'n at 29. Plaintiff points to one exhibit to illustrate this point. PI.
Opp'n at 29 (citing Koyama Decl., Ex. M, at 1). However, that exhibit cites not only
Exemption 3IRuie 6(e), coded "(b)(3)-I," but also to Exemptions 6, 7(C), and often 7(D).
As explained below, Exemptions 6, 7(C) and 7(D) are sufficiently broad to cover the
withheld information. Further, that these names are contained in an FBI investigative
report, FD-302, does not diminish the applicability of Exemption 3. FD-302s are the
very forms on which information relating to Grand Jury witnesses, and others, would
appear. See United States v. Harrison, 524 F.2d 421,424-25 (D.C. Cir. 1975). The
Court, therefore, concludes that defendants have properly withheld the names of
individuals who were either subpoenaed or appeared as witnesses before the Grand Jury
under Exemption 3.
17
B. Exemption 7(C/
Exemption 7 generally applies to "records or information compiled for law
enforcement purposes," if disclosure of such records would lead to one of various
enumerated harms. 5 U.S.C. § 552(b)(7). Exemption 7(C), in particular, protects
information that "could reasonably be expected to constitute an unwarranted invasion of
personal privacy." 5 U.S.C. § 552(b)(7)(C). Thus, in determining the applicability of
Exemption 7(C), the Court must balance the interests advanced by FOIA's disclosure
requirements against the privacy interests of the individuals mentioned in the records.
Beck v. Dep't ofJustice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). "Because the FOIA is
concerned with the right of the general public to know what their government is up to, the
identity and interest of the party requesting the document are irrelevant to this balancing."
Mays v. DEA, 234 F.3d, 1324, 1327 (D.C. Cir. 2000). This applies equally to individuals
seeking information in order to challenge a criminal conviction. See Willis v. Us. Dep't
ofJustice, 581 F. Supp. 2d 57, 76 (D.D.C. 2008).
Here, the information in question was clearly compiled for "law enforcement
purposes." See 5 U.S.C. § 552(b )(7). The Hardy Declaration states that information
withheld under Exemption 7(C) relates to the identity of agents, federal, state and local
9 Both Exemption7(C) and Exemption 6 protect individual's privacy interest, when
balanced against the public interest in disclosure. Accordingly, the Hardy Declaration
makes clear that all information withheld under Exemption 6 is also withheld under
Exemption 7(C). See Hardy Decl. ,-r 58. Further, plaintiffs challenge to Exemption 6
falls with his challenge to Exemption 7(C). PI. Opp'n at 31, n.8. Therefore, because the
analysis under both is also the same, see Durrani v. Us. Dep't ofJustice, 607 F. Supp. 2d
77, 90, n.4 (D.D.C. 2009), this Court will only undertake an analysis under Exception
7(C).
18
government employees, victims, and third parties who provided information to the FBI,
were merely mentioned, or were of investigative interest. Hardy Decl. `` 60-75. It is
well settled that these individuals have a substantial interest in their anonymity. Nation
Magazine v. Us. Customs Serv., 71 F.3d 885, 893-96 (D.C. Cir. 1995); Coleman v. FBI,
13 F. Supp. 2d 75,80 (D.D.C. 1998). As there is no public interest against which to
balance such a substantial privacy interest, see Mays, 234 F.3d at 1327, defendants
properly withheld the information under Exemption 7(C).
Plaintiff, however, challenges the application of the exemption, arguing that the
redactions made were excessive. PI. Opp'n at 31-32. This argument is to no avail.
Exemption 7(C) is not limited to basic indentifying information such as names, addresses
and phone numbers. Indeed, if any information "would reveal the identities of
individuals who are subjects, witnesses, or informants in law enforcement investigations,
those portions of responsive records are categorically exempt from disclosure." Nation
Magazine, 71 F.3d at 896; see also Coleman, 13 F. SUpp. 2d at 80. Thus, the length of
the redaction does not run contrary to the exemption claimed.
Plaintiffs additional argument also must fail. While public disclosure of
documents may lead to the waiver of the FOIA exemption, the plaintiff bears the initial
burden of showing that the requested information: (1) is as specific as the information
previously disclosed; (2) matches the information previously disclosed; and (3) was made
public through an official and documented disclosure. See Cottone v. Reno, 193 F.3d
550,554 (D.C. Cir. 1999); Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). Apart
from the 125 pages proffered in connection with the Epperson FOIA cover letter, which
19
do not affect this analysis, see supra Sec. II, plaintiff provided newspaper articles relating
to the underlying crimes. PI. Opp'n at 32 (citing Koyama Deci. ,-; 23, Ex. N). However,
plaintiff fails to show how the information contained in the newspapers is as specific as
or matches that contained in the responsive documents. Finally, plaintiff argues that
defendants were required to determine the life status of any individual whose information
was withheld. PI. Opp'n at 33. However, "while death of an individual reduces the
privacy interest, it does not eliminate it." Blanton v. us. Dep 't ofJustice, 64 Fed. App'x
787, 789 (D.C. Cir. 2003). Thus, even assuming all the individuals have died, because
there is no identifiable public interest here, their interests, though diminished, would
justify withholding information under Exemption 7(C). See id.
This Court, therefore, finds that defendants have properly withheld information
under Exemption 7(C).
C. Exemption 7(D)
Exemption 7(D) protects "the identity of a confidential source," if the information
was furnished on a confidential basis, and "information furnished by a confidential
source," if compiled by a law enforcement authority during the course of a criminal
investigation. 5 U.S.C. § 552(b)(7)(D). As FOIA exemptions must be narrowly
construed, an agency is not entitled to a presumption of confidentiality with respect to its
sources. Us. Dep 't ofJustice v. Landano, 508 u.S. 165, 181 (1993). The exemption's
applicability, therefore, "depends upon whether the particular source who furnished the
information at issue was granted confidentiality, either expressly or by implication."
Mays v. DEA, 234 F.3d 1324, 1328 (D.C. Cir. 2000).
20
There is no question here that the information provided by the FBI was compiled
for law enforcement purposes, by a criminal law enforcement authority and during the
course of a criminal investigation. Plaintiff, however, asserts that the Hardy Declaration
is insufficiently detailed for plaintiff or this Court to determine whether the information
was provided by a confidential source and on a confidential basis, either expressly or by
implication. PI. Opp'n at 34-38. I disagree.
With respect to information withheld based on an express grant of confidentiality,
the Hardy Declaration explains that "two third-party individuals" were promised
confidentiality after the individuals made a request based on their fears of reprisal. Hardy
Decl. ~ 84. The Hardy Declaration then details the circumstances of that promise, noting
that "[prior] to conducting the interview, the FBI expressly promised" that neither their
identities nor their proffered information would be disclosed. Hardy Decl. ~ 84. Further,
the Hardy Declaration states that the reports, themselves, were annotated with the "words
'protect' or 'protect identity' when the individuals' names are referenced in the file."
Hardy Decl. ~ 84. Such notations provide "probative evidence that the source did in fact
receive an express grant of confidentiality." See Campbell, 164 F 3d at 34 (internal
quotations omitted).
With respect to information withheld based on an implied grant of confidentiality,
the Hardy Declaration again more than sufficiently provides a basis on which to
determine that the information was properly withheld under the exemption. Having
explained the brutality of the underlying crimes, the Hardy Declaration explains that the
information provided by the third parties was "specific" and "singular in nature" and led
21
to plaintiffs arrest. Hardy Decl. ~ 80. As this Court has noted, "[t]he nature of the crime
investigated and informant's relation to it are the most important factors in determining
whether implied confidentiality exists." Amuso v. u.s. Dep 't ofJustice, 600 F. Supp. 2d
78, 100 (D.D.C. 2009). Due to the violent nature of the crimes, it is reasonable to
conclude that these sources disclosed information in confidence due to the fear of
reprisal. See Mays, 234 F.3d at 1329. 10
Thus, this Court finds that defendants have demonstrated that the information
withheld pursuant to both an express and an implied grant of confidentiality logically
falls within Exemption 7(D).
CONCLUSION
For all of the foregoing reasons, the Court GRANTS defendants' Motion for
Summary Judgment [#15] and DENIES plaintiffs Cross-Motion for Partial Summary
Judgment [#18]. An Order consistent with this decision accompanies this Memorandum
Opinion.
/7 /I
(/``
RICHARqJ. LEON
United State-s-mstrict Judge
10 Plaintiff argues that there is no evidence of any retaliation in the 25 years since these
crimes occurred. This argument is, however, irrelevant to this analysis. What is
dispositive is whether the source understood that the information provided would be kept
confidential at the time the information was disclosed. See Landano, 508 U.S. at 172.
22