Matthews v. Federal Bureau of Investigation ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALEXANDER OTIS MATTHEWS,
Plaintiff,
v.
Civil Action No. 15-569 (RDM)
FEDERAL BUREAU OF
INVESTIGATION,
Defendant.
MEMORANDUM OPINION AND ORDER
Alexander Otis Matthews, proceeding pro se, brings this Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552 et seq., action against the Federal Bureau of Investigation (“FBI”).
Matthews pleaded guilty to bank fraud and wire fraud in July 2011. Dkt. 64 at 2. In March
2013, he submitted a FOIA request to the FBI, seeking all records about himself. Dkt. 53-5 at 2–
3 (Hardy Decl. ¶ 5). The FBI processed some 671 pages of responsive documents, Dkt. 53-6 at
2–3 (Argall Decl. ¶ 4), before filing its first motion for summary judgment, Dkt. 53.
The Court granted that motion in part and denied it in part. Dkt. 64. As relevant here,
the Court concluded that the FBI had failed to show that the FOIA waiver that Matthews
executed as part of his plea agreement was enforceable, id. at 24–29 (citing Price v. U.S. Dep’t of
Just. Att’y Off., 865 F.3d 676, 678 (D.C. Cir. 2017)), and failed adequately to justify some of its
remaining withholdings under Exemptions 6, 7(C), and 7(D), id. at 14–21. The Court,
accordingly, ordered that the FBI (1) produce the non-exempt, responsive documents that it had
previously withheld based on the FOIA waiver in Matthews’s plea agreement, and (2) provide
additional information to justify its withholdings under Exemptions 6, 7(C), and 7(D). Id. at 29.
The FBI has renewed its motion for summary judgment. Dkt. 89. The FBI maintains
that it has now adequately justified those withholdings for which the Court found its prior
showing insufficient. Dkt. 89-1 at 11–22. The FBI separately argues that Plaintiff has failed to
pay the fees associated with certain releases and has therefore failed to exhaust his administrative
remedies with respect to those releases. Id. at 22–24.
The Court will GRANT in part and DENY in part the FBI’s renewed motion for
summary judgment. Although the Court concludes that some of the FBI’s withholdings are
supported by the current record, the FBI’s submissions remain insufficient, in spite of this
Court’s prior admonitions, to justify many of its withholdings. To be sure, the agency may well
be able to support its invocation of the various exemptions at issue. But, unfortunately, this is a
case in which the government’s repeated failure to substantiate its claims has needlessly created
more work for all involved. And, as for the FBI’s exhaustion argument, it is undisputed that
Matthews has, in fact, paid the relevant processing fees for three releases since the Court’s prior
opinion—the July, August, and September 2019 releases. Because the FBI does not argue that
Matthews delay in making those payments constituted an incurable default, its exhaustion
argument is unavailing with respect to those releases.
I. BACKGROUND
A. Factual Background & Initial Procedural History
Because this is not the Court’s first opinion in this matter, see Dkt. 35 (Mem. Op. &
Order); Dkt. 44 (Mem. Op. & Order); Dkt. 64 (Mem. Op. & Order), the Court will recount only
those facts necessary to resolve the FBI’s most recent motion.
In July 2011, Matthews pleaded guilty to one count of wire fraud and one count of bank
fraud in response to a consolidated indictment in the Eastern District of Virginia. See Dkt. 24-1
2
at 57–58 (Plea Agreement ¶¶ 1a–1b); Dkt. 53-4 at 2 (Faulconer Decl. ¶¶ 2b–2c, 2e–2f). As part
of that plea agreement, Matthews waived his right to file a FOIA request for documents relating
to his prosecution. Dkt. 24-1 at 62 (Plea Agreement ¶ 6). In October 2011, Matthews was
sentenced to a 120-month term of incarceration and ordered to pay $5 million in restitution. Dkt.
53-4 at 3 (Faulconer Decl. ¶ 2g). He later filed a petition for collateral relief pursuant to 28
U.S.C. § 2255, alleging that his counsel had failed to disclose an early plea offer made by the
government. See Dkt. 59. The sentencing court denied that petition. 1
On March 1, 2013, Matthews filed a FOIA request with the FBI, seeking records about
himself. Dkt. 53-5 at 2–3 (Hardy Decl. ¶¶ 5–6). According to Matthews, he filed this request in
hopes of supporting his claim that an Assistant United States Attorney (“AUSA”) from the
Eastern District of Virginia falsely represented during Matthews’s § 2255 proceedings that no
early plea offer was ever presented to his counsel. Dkt. 59 at 1–2. In response, the FBI
processed 671 pages, releasing 35 pages in full and 272 pages in part, while withholding 364
pages in full. Dkt. 53-6 at 3–4 (Argall Decl. ¶ 4). In support of its withholdings, the FBI
invoked Privacy Act Exemption (j)(2) and FOIA Exemptions 3, 5, 6, 7(C), 7(D), and 7(E). Id.
In April 2015, Matthews filed this lawsuit, challenging the adequacy of the FBI’s
response to his FOIA request. Dkt. 1 at 1 (Compl.). The FBI moved to dismiss or, in the
alternative, for summary judgment, arguing that Matthews had failed to pay his FOIA processing
fees or to seek a fee waiver and thus failed to exhaust his administrative remedies. Dkt. 12. The
FBI subsequently notified the Court, however, that Matthews had (belatedly) paid the processing
fees, Dkt. 17, and the FBI thus agreed to “process the records and release nonexempt records to
1
Matthews transitioned to a halfway house in 2018, Dkt. 57, and subsequently filed a notice of
change of address, listing a private residence. Dkt. 65; see also Dkt. 91 (listing another address).
3
Plaintiff,” Dkt. 15 at 4. The Court, accordingly, denied the FBI’s motion as moot. See Minute
Order (Oct. 8, 2015).
In January 2016, the FBI again moved for summary judgment, Dkt. 24, arguing that
Matthews was prohibited from proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(g),
Dkt. 28 at 2. The Court agreed and dismissed Matthews’s action without prejudice. Dkt. 31.
Matthews, then, moved for reconsideration. Dkt. 32. Although the Court was unpersuaded by
the argument that Matthews pressed, the Court modified its earlier decision to provide Matthews
with the option of paying the filing fee and thus proceeding with the pending action. Dkt. 35 at
10. The Court received Matthews’s filing fee in February 2018. See Receipt of Filing Fee (Feb.
21, 2018). Thereafter, the FBI filed its third motion for summary judgment. Dkt. 53.
B. Prior Summary Judgment Decision
The Court granted in part and denied in part the FBI’s third motion. The Court
concluded that the FBI had shown that it had conducted an adequate search, Dkt. 64 at 7–8, and
that the agency properly invoked most of the exemptions upon which it relied, see id. at 9–10
(Exemption 3), id. at 10–13 (Exemption 5), id. at 21–23 (Exemption 7(E)). Two sets of
exemptions required further scrutiny, however—those made under Exemption 6 and 7(C), and
those made under Exemption 7(D).
Exemption 6 applies to “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), while Exemption 7(C) applies to records “compiled for law enforcement purposes”
if their release “could reasonably be expected to constitute an unwarranted invasion of personal
privacy,” id. § 552(b)(7)(C). The Court had little trouble concluding that Exemption 7(C)
shielded certain of the records withheld by the FBI, such as “the names and identifying
4
information” of private individuals and agency employees identified within “Matthews’s main
investigative file.” Dkt. 64 at 15. But the disputed records also included Matthews’s “197 file,”
which the FBI created in response to a Federal Tort Claims Act (“FTCA”) claim Matthews filed
against the FBI. See Dkt. 53-6 at 23 (Argall Decl. ¶ 44 n.19). The FBI failed to demonstrate that
the file was “compiled for law enforcement purposes,” 5 U.S.C. § 552(b)(7), and, thus, failed to
carry its burden under Exemption 7(C). Dkt. 64 at 15–16. And, although Exemption 6 applies
more broadly to “personnel[,] medical files[,] and similar files,” 5 U.S.C. § 552(b)(6), the FBI’s
reliance on that exemption fell short as well. In particular, the FBI’s motion and supporting
material lacked sufficient information to allow the Court to determine whether the disclosure of
the personal information in that file “would constituent a clearly unwarranted privacy invasion.”
Dkt. 64 at 16 (quoting Jud. Watch, Inc. v. U.S. Dep’t of State, 282 F. Supp. 3d 36, 49–50 (D.D.C.
2017)). The FBI’s evidence did not, for example, “offer any details about which categories of
individuals appeared in the 197 file, or the types of records from which the names and
identifying information were redacted.” Id. at 16–17. Because the Court could not “ascertain
whether the release of these names and identifying information would compromise a substantial
privacy interest,” the Court denied “summary judgment as to the FBI’s withholdings based on
Exemption 6 in the 197 file.” Id. at 167. The Court did, however, “provide the agency with an
opportunity to make a more particularized showing.” Id.A similar flaw precluded the Court from granting the FBI’s motion with respect to a
subset of withholdings under Exemption 7(D). That exemption protects “records or information
compiled for law enforcement purposes” the release of which “could reasonably be expected to
disclose the identity of a confidential source” or “information furnished by a confidential
source,” 5 U.S.C. § 552(b)(7)(D). Invoking Exemption 7(D), the FBI withheld documents
5
relating to an informant who agreed to an informal proffer, along with documents containing the
identifying information about seven other individuals who provided “non-public information”
and who were “in positions to have unique access to and/or knowledge” about the criminal
investigation which led to Matthews’s charges. Dkt. 53-6 at 33–34 (Argall Decl. ¶ 59(a)–(b)).
The FBI had shown that it “properly invoked Exemption 7(D) with respect to” the informant
who agreed to the informal proffer, in part because of the seriousness of Matthews’s crime and
informant’s close relationship with the target of the investigation. Dkt. 64 at 19–20. But, with
respect to the remaining seven individuals, the FBI “merely recite[d], in boilerplate fashion, that
these individuals were ‘in positions to have unique access to and/or knowledge about the targets
of the investigation.’” Id. at 20 (quoting Dkt. 53-6 at 34 (Argall Decl. ¶ 59(b)). Because such
rote statements were insufficient to “show that each of these seven sources operated under an
implied understanding of confidentiality,” the Court denied “summary judgment as to the FBI’s
withholdings on the basis of implied confidentiality for the seven informants.” Id. at 20. But, as
with the Exemption 6 withholdings, the Court “provide[d] the agency with an opportunity to
make a more particularized showing.” Id.The Court then turned to the enforceability of the FOIA waiver in Matthews’s plea
agreement. Based on that waiver, the FBI had declined to process some relevant files, including
“those investigative files resulting in [Matthews’s] wire fraud and bank fraud prosecutions” and
“the related motion to vacate [his] sentence.” Id. at 24–25 (alterations in original) (quoting Dkt.
53-6 at 10–11 (Argall Decl. ¶ 20)). The Court rejected the FBI’s reliance on the waiver because
the agency failed to articulate “any legitimate criminal justice interest served by Matthews’s
FOIA waiver.” Id. at 28; see also Price v. U.S. Dep’t of Just. Att’y Off., 865 F.3d 676, 683 (D.C.
Cir. 2017) (holding that such waivers are unenforceable unless they further a legitimate criminal
6
justice interest). The Court, accordingly, denied summary judgment as to those documents
withheld based on Matthews’s FOIA waiver. Id. at 29.
C. Subsequent Procedural History
After the Court issued its decision, the FBI made two sets of supplemental productions—
one in response to this Court’s conclusion that the FBI had failed to carry its burden with respect
to Exemptions 6, 7(C), and 7(D), and one in response to this Court’s holding that the FBI had
failed to justify its reliance on the FOIA waiver contained in Matthews’s plea agreement.
First, the FBI re-processed 18 pages from Matthews’s 197 file, releasing 13 pages in full
or in part, while continuing to withhold the remaining material pursuant to Exemptions 6 and
7(C). See Dkt. 89-2 at 8 (Seidel Decl. ¶ 16). 2 The FBI separately reprocessed some material
from Matthews’s “main file,” and, after consulting the Executive Office of United States
Attorneys (“EOUSA”), withheld a portion of that material pursuant to Exemptions 6 and 7(C).
Dkt. 89-2 at 8–9 (Seidel Decl. ¶ 16). Because these records had been previously processed, the
FBI provided the non-exempt material to Matthews at no charge. Id. 3
Next, in response to this Court’s conclusion that the FBI had failed to justify its reliance
on the FOIA waiver in Matthews’s plea agreement, the agency “located approximately 5,620
potentially responsive pages that . . . require[d] processing.” Dkt. 68 at 1. With respect to these
records, the Court ordered that the FBI to “process approximately 500 pages of potentially
2
The FBI also withheld material pursuant to Exemption 5, see Dkt. 89-2 at 8 & n.12 (Seidel
Decl. ¶ 16 & n.12), but the Court has already concluded that those redactions were permissible,
see Dkt. 64 at 12–13.
3
The FBI does not appear to have re-processed or released any pages in response to the Court’s
conclusion that the agency had inadequately supported some of its withholdings under
Exemption 7(D). Dkt. 64 at 20. Instead, the FBI has attempted to buttress its evidentiary
support for those withholdings with a new declaration. See Dkt. 89-2 at 17–21 (Seidel Decl.
¶¶ 38–46).
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responsive documents per month and make monthly releases of any non-exempt records on the
last day of each month.” Minute Order (June 4, 2019). These monthly productions began in July
2019. See Dkt. 89-2 at 4 (Seidel Decl. ¶ 8). As part of its first production, the FBI notified
Matthews that it “had located approximately 5,427 pages of records potentially responsive to
[his] request and [that] he would owe approximately $165.00 in duplication fees if all these
records were released.” Id. at 5 (Seidel Decl. ¶ 8). This total would be allocated across the
entirety of the FBI’s productions, however, and for the first monthly production Matthews owed
only $15.00. Id. The FBI warned Matthews, in an attachment, that “[f]ailure to pay for this
release within thirty (30) days from the date of this letter will close any pending FBI [FOIA]
requests from you.” Id. at 27 (Seidel Decl., Ex. A).
The FBI made additional releases in August 2019 and September 2019. See id. at 5–6
(Seidel Decl. ¶¶ 9–10). Both releases were accompanied by a letter that specified the amount
Matthews owed. See id. at 34 (Seidel Decl., Ex. B) (informing Matthews he owed $30.00
following August 2019 production); id. at 40 (Seidel Decl., Ex. C) (informing Matthews he owed
$45.00 following September 2019 production). Each letter included the same warning that
accompanied the July 2019 production: “Failure to pay for this release within thirty (30) days
from the date of this letter will close any pending FBI [FOIA] requests from you.” Id. at 34(Seidel Decl., Ex. B) (August 2019); id. at 40 (Seidel Decl., Ex. C) (September 2019) (same).
Despite these warnings, Matthews failed to make the required payments, prompting the
FBI, on November 4, 2019, to “notif[y] the Court of its intent to cease processing records
responsive to Plaintiff’s FOIA request” and to move the Court to modify its order “to relieve
Defendant of [its] obligation” to process and produce responsive documents on a monthly basis.
Dkt. 73 at 4. Matthew opposed the FBI’s motion on the ground that he had (belatedly) paid the
8
$45.00 balance (on December 10, 2019) and that he “agree[d] to pay any future document
production cost.” Dkt. 77 at 1; see id. at 3 (copy of receipt). While that motion was pending, the
FBI did not make any productions in October 2019, November 2019, December 2019, or January
2020. When Matthews made the $45.00 payment, he became current on his payments for the
FBI’s July 2019, August 2019, and September 2019 productions.
The Court, accordingly, granted in part and denied in part the FBI’s motion to modify.
See Minute Order (Jan. 6, 2020). Because “Plaintiff had failed to pay the processing fees related
to this FOIA request until December 10, 2019,” the Court found that “good cause exist[ed] to
retroactively modify the [its] Minute Order with respect to the productions that had been
scheduled for October 2019, November 2019, December 2019, and January 2020,” relieving the
FBI of its 500-page per month processing obligation for this period. Id. “However, given that
Plaintiff ha[d] now paid the processing fees,” the Court clarified that the FBI was “not absolved
of its future production obligations” and ordered “that the Defendant [] recommence making
productions each month at the end of the month, beginning on February 28, 2020.” Id.Consistent with that order, the FBI resumed its monthly productions in February 2020.
Dkt. 89-2 at 6 (Seidel Decl. ¶ 12). Just as it did with its three prior productions, the FBI
informed Matthews that “he owed $15.00 for [each] release,” id. at 7 (Seidel Decl. ¶ 12), and that
failure to pay would prompt the FBI to close any pending FOIA requests, id. at 45 (Seidel Decl.,
Ex. D). Shortly thereafter, the onset of the Covid-19 pandemic temporarily halted FOIA
operations at the FBI and prompted the agency to seek a stay. See Dkt. 80. The Court granted
that stay, which remained in effect until the FBI’s FOIA staff was “permitted to resume [its]
usual record processing functions.” Minute Order (Mar. 31, 2021). The FBI, as a result, did not
make its next production until May 2020. See Dkt. 83 at 1. The FBI made one more production,
9
in June 2020. Dkt. 89-2 at 7 (Seidel Decl. ¶ 14). To this day, however, Matthews has not paid
the fees he owes for the records that the FBI released in February 2020, May 2020, or June 2020.
Id. at 8 (Seidel Decl. ¶ 15); see id. at 58 (Seidel Decl., Ex. G) (notifying Matthews, following the
June 2020 production, that he had “a total amount due of $45.00”).
Due to these outstanding fees, the FBI ceased its processing and release of responsive
documents and requested a summary judgment briefing schedule, Dkt. 85, which this Court set,
Minute Order (Aug. 27, 2020). The FBI moved for summary judgment, Dkt. 89, and, in support,
submitted declarations from Michael Seidel, the Section Chief of the Record/Information
Dissemination Section of the FBI, Dkt. 89-2 at 1 (Seidel Decl. ¶ 1), and Justin Wilkinson, an
Attorney-Advisor with the EOUSA, Dkt. 89-3 at 67 (Wilkinson Decl. ¶ 1). Matthews opposed
the FBI’s motion, Dkt. 91, and the FBI has replied, Dkt. 92.
II. LEGAL STANDARD
The Freedom of Information Act mandates that an agency disclose records on request,
unless they fall within one of nine exemptions. “These exemptions are explicitly made exclusive
and must be narrowly construed.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011) (citation
and quotation marks omitted). “FOIA cases are typically resolved on motions for summary
judgment under Federal Rule of Civil Procedure 56.” Shapiro v. U.S. Dep’t of Justice, 153 F.
Supp. 3d 253, 268 (D.D.C. 2016). To prevail on a summary judgment motion, the moving party
must demonstrate that there are no genuine issues of material fact and that he or she is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). “In a FOIA action, the Court may award summary judgment to an agency solely on
the basis of information provided in affidavits or declarations that describe. . . ‘the justifications
for nondisclosure [of records] with reasonably specific detail . . . and are not controverted by
10
either contrary evidence in the record nor by evidence of agency bad faith.’” Thomas v. FCC,
534 F. Supp. 2d 144, 145 (D.D.C. 2008) (alteration in original) (quoting Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). The Court reviews the agency’s determinations de
novo, and the agency bears the burden of sustaining its actions. 5 U.S.C. § 552(a)(4)(B).
III. ANALYSIS
The FBI advances three arguments in support of its current motion for summary
judgment. First, it maintains that the information withheld from Matthews’s “197 file” was
“exempt from disclosure pursuant to Exemptions 6 and 7(C).” Dkt. 89-1 at 11. Second, the FBI
argues that it properly withheld information from Plaintiff’s “main file” pursuant to Exemption
7(D). Id. at 18. Third, it argues that it is entitled to summary judgment with respect to records
first processed after the Court’s March decision because Plaintiff failed to “pay fees associated
with the FBI’s February, May, and June 2020 releases” and, thus, failed “to exhaust his
administrative remedies.” Id. at 24. The Court will address each argument in turn.
A. Exemptions 6 and 7(C)
The Court begins with the FBI’s withholdings under Exemptions 6 and 7(C). Invoking
those exemptions, the FBI seeks to withhold (1) the names and identifying information of FBI
support personnel who handled ministerial tasks associated with the investigation of Matthews’s
FTCA claims; (2) the names and telephone numbers of the AUSA assigned to Matthews’s
criminal prosecution and of a Probation Office employee; and (3) the full victim impact
statement associated with Matthews’s criminal prosecution in the Eastern District of Virginia.
Id. at 13–14; see also Dkt. 89-2 at 13–14 (Seidel Decl. ¶¶ 28–29); id. at 89-3 at 5 (Wilkinson
Decl. ¶ 14). Although Matthews does not directly challenge the FBI’s invocation of these
exemptions, see Dkt. 91, the Court will nevertheless “verify the validity of each” to ensure the
11
agency has carried its “burden . . . of proving the applicability of [its] claimed statutory
exemptions,” Summers v. U.S. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998).
To justify these withholdings, the FBI relies principally on Exemption 6, which shields
“personnel and medical files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The presence of “personal,
identifying information,” on its own, “is not enough to invoke Exemption 6;” instead, the
information must be “of such a nature that its disclosure would constitute a clearly unwarranted
privacy invasion.” Judicial Watch, Inc. v. U.S. Dep’t of State, 282 F. Supp. 3d 36, 49–50
(D.D.C. 2017) (quoting Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir.
2002)). To make that determination, the Court first must evaluate whether “disclosure would
compromise a substantial, as opposed to a de minimis, privacy interest,” Nat’l Ass’n of Retired
Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989), and then “balance the privacy interest
in non-disclosure against the public interest” in disclosure, Consumers’ Checkbook, Ctr. for the
Study of Servs. v. U.S. Dep’t of Health & Human Servs., 554 F.3d 1046, 1050 (D.C. Cir. 2009).
The FBI relies, in the alternative, on Exemption 7(C), Dkt. 89-1 at 12–13, which “is more
protective of privacy than Exemption 6’ and thus establishes a lower bar for withholding
material,” ACLU v. U.S. Dep’t of Just., 655 F.3d 1, 6 (D.C. Cir. 2011) (quoting U.S. Dep’t of
Def. v. FLRA, 510 U.S. 487, 496 n.6 (1994)). Notably, “[u]nlike [under] Exemption 6, the
balance is not tilted emphatically in favor of disclosure under Exemption 7(C).” Jefferson v.
Dep’t of Just., Off. of Pro. Resp., 284 F.3d 172, 180 (D.C. Cir. 2002). This is so for two reasons.
First, while Exemption 6 is available only if the disclosure “would constitute a clearly
unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(6) (emphasis added), “[t]he adverb
‘clearly’ . . . is not used in Exemption 7(C),” Nat’l Archives & Recs. Admin. v. Favish, 541 U.S.
12157, 165–66 (2004). And, second, while “Exemption 6 refers to disclosures that ‘would
constitute’ an invasion of privacy, Exemption 7(C) encompasses any disclosure that ‘could
reasonably be expected to constitute’ such an invasion.” U.S. Dep’t of Justice v. Reps. Comm.
for Freedom of the Press, 489 U.S. 749, 756 (1989) (emphases added). To justify withholding
under either exemption, however, the agency must identify a substantial privacy interest, and the
D.C. Circuit has “deemed the privacy inquiry of Exemptions 6 and 7(c) to be essentially the
same.” Jud. Watch, Inc. v. Dep’t of Just., 365 F.3d 1108, 1125 (D.C. Cir. 2004). 4
The Court previously faulted the FBI for failing to provide the information necessary to
conduct this analysis, including “details about which categories of individuals appeared in the
197 file, or the types of records from which the names and identifying information were
redacted.” Dkt. 64 at 16–17. Without this “basic information,” the Court could not “ascertain
whether the release of these names and identifying information would compromise a substantial
privacy interest,” id. at 17, much less weigh any such “‘privacy interest in non-disclosure against
the public interest in disclosure,’” id. at 13 (quotation marks omitted).
With respect to the FBI’s “redaction of the identities of support personnel who
perform[ed] clerical or administrative duties,” Dkt. 89-1 at 15, the Court concludes that the FBI
has now provided the necessary detail to justify its withholdings. According to the FBI’s
supplemental filings, these support personnel “handled tasks to open the 197 file and forwarded
instructions to other personnel for further action in the investigation of Plaintiff’s claims.” Dkt.
89-2 at 13 (Seidel Decl. ¶ 28). These individuals have “substantial privacy interests” in the non-
4
Exemption 7(C) requires a separate showing, that the disputed “records or information [were]
compiled for law enforcement purposes,” 5 U.S.C. § 552(b)(7)(C). The Court need not address
that issue here, however, because—as described below—the FBI’s withholdings as to its support
personnel are proper under Exemption 6, and the agency has failed to demonstrate the substantial
privacy interested required to necessitate further inquiry as to its remaining withholdings.
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disclosure of their identities, according to Seidel, because they “have access to information
regarding official law enforcement investigations,” and so “may become targets of harassing
inquiries for unauthorized access to information regarding investigations if their identities were
released.” Id. at 13–14 (Seidel Decl. ¶¶ 29–30). Targets of FBI investigations, moreover, “may
seek revenge on the support personnel involved.” Id. at 14 (Seidel Decl. ¶ 30).
The concerns raised in the Seidel declaration are consistent with “‘Congress’[s] primary
purpose in enacting Exemption 6’—and, by extension 7(C),” which “‘was to protect individuals
from the injury and embarrassment that can result from the unnecessary disclosure of personal
information.’” Bernegger v. Exec. Off. for U.S. Att’ys, 334 F. Supp. 3d 74, 89 (D.D.C. 2018)
(quoting Dep’t of State v. Wash. Post Co., 456 U.S. 595, 599 (1982)). The dangers Seidel
describes are more than “de minimis,” Horner, 879 F.2d at 874—instead, they represent “the
very real risks of adverse publicity, harassment, or revenge” that would arise if support
personnel’s identities are disclosed, Dkt. 89-2 at 14 (Seidel Decl. ¶ 28). Throughout this
litigation, Matthews has repeatedly identified government officials—including FBI special
agents and prosecutors—whom he asserts have engaged in misconduct. See, e.g., Dkt. 1 at 2
(Compl. ¶ 4); Dkt. 59 at 2–3; Dkt. 91 at 1. And where disclosure of identifying information
poses an articulable risk of harassment or retaliation, this Court has had little difficulty in
recognizing a “cognizable privacy interest” for purposes of Exemption 6. Bernegger, 334 F.
Supp. at 89. Given that FBI support personnel may, among other things, “become targets of
harassing inquiries . . . if their identities [ar]e released,” the Court is persuaded that the support
personnel possess “substantial privacy interests” in their identifying information. Dkt. 89-2 at
13–14 (Seidel Decl. ¶ 29).
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Matthews, in turn, identifies no countervailing “public interest” that might weigh in favor
of disclosure. Consumers’ Checkbook, 554 F.3d at 1050. He asserts that the public has a
compelling interest in “finding out exactly what the government was up to in obstructing the
course of justice during [his] 2255 proceeding.” Dkt. 91 at 2 (quotation marks omitted). He
does not explain, however, how the identity of support personnel who perform clerical and
administrative duties has anything to do with that asserted interest. See Dkt. 89-2 at 13 (Seidel
Decl. ¶ 28). The Court concludes, accordingly, that the FBI properly withheld the names and
identifying information of FBI support personnel within Matthew’s 197 File. 5
The FBI’s remaining withholdings under Exemptions 6 and 7(C), however, are less
clearly supported on the present record. These withholdings include “the names and phone
numbers of an AUSA and employee from the parole office who were communicating regarding
[Matthews’s] presentence report,” Dkt. 89-1 at 16, along with the entirety of “the victim impact
statement associated with [Matthews’s] criminal prosecution in the Eastern District of Virginia
with docket number 11-CR-00087,” id. at 14. The only explanation of the privacy interest at
stake is found in the following paragraph from the Wilkinson declaration:
In addition, EOUSA has withheld information to uphold privacy interests of
individuals or private entities named that may have been involved in[,] or
victims of crimes related to[,] the Matthews investigation. The disclosure of
[personal identifiable information] could subject individuals to an unwarranted
invasion of their personal privacy by leading to efforts to contact them directly
or subject them to harassment or harm. In addition, release of this information
might lead to retaliation against those individuals identified as being connected
in some way to this investigation, and could unfairly cause damage to those
individuals’ careers and reputations.
5
Although the FBI maintains that Matthews’s 197 file is, in its entirety, a “similar file” for
purposes of invoking Exemption 6, Dkt. 89-1 at 8–9, the Court need not decide that question.
“Exemption 6 protection not only relates to entire physical files, but also encompasses bits of
personal information that refer to a particular individual,” including “a person’s name, address,
place of birth, employment history, and telephone number.” Jud. Watch, Inc. v. Dep’t of the
Navy, 25 F. Supp. 3d 131, 141 (D.D.C. 2014)(quotation marks omitted).
15
Dkt. 89-3 at 5 (Wilkinson Decl. ¶ 15); see also id. at 8 (Vaughn index). Relying on these
representations, the FBI maintains that “[t]he same analysis applied to FBI support personnel
applies to these individuals.” Dkt. 89-1 at 16. The Court cannot agree.
To be sure, the Court has previously recognized that prosecutors may enjoy a privacy
interest in the non-disclosure of their names and contact information, see, e.g., Bernegger, 334 F.
Supp. 3d at 89, and, indeed, if anything, the risk of harassment and retribution is likely greater
for prosecutors than for administrative staff. Similar logic may justify the withholding of a
probation officer’s identifying information. See Georgacarakos v. FBI, 908 F. Supp. 2d 176,
184 (D.D.C. 2012). But “a bare assertion that a document’s ‘disclosure would constitute a
clearly unwarranted invasion of [an individual’s] personal privacy’ is not sufficient to establish
that a substantial privacy interest in preventing disclosure exists.” Dep’t of the Navy, 25 F. Supp.
3d at 142 (alteration in original) (quoting Morley v. CIA, 508 F.3d 1108, 1127–28 (D.C. Cir.
2007)); see also Elec. Priv. Info. Ctr. v. Dep’t of Homeland Sec., 384 F. Supp. 2d 100, 116
(D.D.C. 2005) (“The fact that federal employees have an identifiable privacy interest in avoiding
disclosures of information that could lead to annoyance or harassment, however, does not
authorize a ‘blanket exemption’ for the names of all government employees in all records.”
(quoting Baez v. U.S. Dep’t of Justice, 647 F.2d 1328, 1338 (D.C. Cir. 1980)).
Here, the FBI’s reliance on Exemptions 6 and 7(C) to protect the identity of the AUSA
and the probation office employee at issue faces at least two difficulties. First, Matthews’s
criminal case proceeded publicly, and an AUSA—perhaps the same AUSA in dispute here—
undoubtedly appeared, both on the record and in court. Someone from the probation office
likely appeared at Matthews’s sentencing as well, and the Court has no way of knowing whether
that individual is the one whose identity is now at issue. Second, the FBI’s evidentiary
16
showing—a single paragraph in a declaration—is unduly thin, particularly in light of the
possibility that the AUSA and the probation officer have, unlike the FBI’s support personnel,
already been publicly associated with Matthews’s criminal case. “[T]he potential adverse
consequences” of disclosure “must be real rather than speculative,” Dep’t of the Navy, 25 F.
Supp. 3d at 142 (quotation marks omitted), and Wilkinson says only that “disclosure . . . could
subject individuals to an unwarranted invasion of their personal privacy;” “might lead to
retaliation against those individuals identified;” and “could unfairly cause damage to those
individual’s careers and reputations.” Dkt. 89-3 at 5 (Wilkinson Decl. ¶ 15) (emphases added).
At least on the present record, therefore, the Court is unpersuaded that the FBI has carried
its burden of demonstrating that disclosing the identity of the ASUA, or of the probation office
employee, would threaten a substantial privacy interest. Perhaps the AUSA at issue was not a
member of the public trial team, and perhaps the identity of the probation office employee was
never disclosed as part of Matthews’s criminal prosecution. Perhaps the FBI is concerned that
further publicizing the names of those individuals could lead to harassment. Perhaps there is
something about the content of the communication itself that raises unique privacy concerns.
Perhaps the FBI is most concerned with protecting the AUSA and the probation office
employee’s contact information, rather than their identities. But neither the Wilkinson
declaration nor any other submission from the FBI says any of this—or anything else that would
support the agency’s claim that “disclosure would compromise a substantial, as opposed to a de
minimis, privacy interest,” Horner, 879 F.2d at 874. And because a substantial privacy interest is
required under Exemptions 6 and 7(C), see Dep’t of the Navy, 365 F.3d at 1125, the Court must
deny the FBI’s motion for summary judgment with respect to the names and phone numbers of
the AUSA and probation office employee.
17
Based on the sparse evidentiary record, the Court is also unable to conclude that the FBI
has carried its burden with respect to the victim impact statement from Matthews’s criminal case.
See Dkt. 89-1 at 14. To be sure, it seems likely that the victim impact statement is deserving of
protection—Congress itself has recognized that “[a] crime victim has . . . the right to be treated
with fairness and with respect for the victim’s dignity and privacy.” 18 U.S.C. § 3771(a)(1)(8).
And, in the normal course, victim impact statements are filed under seal as part of the
presentence report. If that were the case, and assuming those statements were not read in open
court, their release would likely trigger the kind of “the injury and embarrassment that can result
from the unnecessary disclosure of personal information.” Wash. Post. Co., 456 U.S. at 599.
The difficulty, however, is that the FBI has failed to offer any evidence to this effect; the
government offers only the single, unenlightening paragraph from the Wilkinson declaration
described above. Dkt. 89-3 at 5 (Wilkinson Decl. ¶ 15).
Indeed, on the present record, the Court cannot even discern the specific nature of the
withheld record. Although the FBI’s brief refers to a “victim impact statement,” Dkt. 89-1 at 14,
the Vaughn index describes the record as “[c]ommunications between the U.S. Attorney’s Office
for the Eastern District of Virginia and [v]ictims related to the Matthews investigation,” Dkt. 89-
3 at 8 (Vaughn Index). The Court can only guess as to whether the record contains statements
from the U.S. Attorney’s Office, from a victim or victims, or both. The FBI’s submissions
likewise leave the Court in the dark as whether the “[c]ommunications” describe the “impact” of
the crime—as the FBI asserts in its brief but not in the Vaughn index—or, instead, relate to other
subjects, such as the logistics of sentencing, the rights of victims under the Crime Victims’
Rights Act, or the substance of the investigation. In this posture, the Court must conclude that
the FBI has failed to demonstrate that the withholdings at issue further a substantial privacy
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interest for purposes of Exemptions 6 or 7(C). Cf. Horner, 879 F.2d at 874. The Court will,
accordingly, deny the FBI’s motion for summary judgment as to the victim impact statement
associated with Matthews’s criminal prosecution.
B. Exemption 7(D)
The Court next turns to the FBI’s invocations of Exemption 7(D). That exemption
authorizes the withholding of documents “compiled by criminal law enforcement authorities in
the course of criminal investigations” that “could reasonably be expected to disclose the identity
of, as well as information provided by, a confidential source.” Cooper v. Dep’t of Justice, 169 F.
Supp. 3d 20, 39 (D.D.C. 2016) (quoting Comput. Pros. for Soc. Resp. v. U.S. Secret Serv., 72
F.3d 897, 905 (D.C. Cir. 1996)). Whether the FBI can claim Exemption 7(D) “depends upon
whether the particular source who furnished the information at issue was granted confidentiality,
either expressly or by implication.” Id. (quoting Mays v. Drug Enf’t Admin., 234 F.3d 1324,
1328 (D.C. Cir. 2000)). “[W]hen circumstances such as the nature of the crime investigated and
[the informant’s] relation to it support an inference of confidentiality, the [FBI] is entitled to a
presumption” of implied confidentiality. Mays, 234 F.3d at 1329 (second alteration in original).
To make this determination, the Court is to consider the following:
the character of the crime at issue, the source’s relation to the crime, whether
the source received payment, and whether the source has an ongoing
relationship with the law enforcement agency and typically communicates with
the agency only at locations and under conditions which assure the contact will
not be noticed.
Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1184 (D.C. Cir. 2011) (quotations marks omitted).
The FBI invokes Exemption 7(D) with respect to seven individuals identified in
Matthews’s “main file” who, according to the Seidel, “provided relevant singular, non-public
information to the FBI.” Dkt. 89-2 at 19 (Seidel Decl. ¶ 44). This Court previously held that the
19
FBI permissibly invoked this exemption to shield from disclosure information about an
“informant who agreed to provide an informal proffer,” in part based on “[t]he seriousness of
[Matthews’s] offense and the resulting punishment,” which “weigh in favor of finding
cooperator confidentiality.” Dkt. 64 at 19 (quoting Marck v. Dep’t of Health & Human Servs.,
314 F. Supp. 3d 314, 328 (D.D.C. 2018)). As to the other individuals, the FBI’s evidence,
including its supporting declarations, were insufficient to show that each “operated under an
implied understanding of confidentiality,” particularly “absent evidence that all of the sources
were similarly situated.” Dkt. 64 at 20. To fill this gap in the evidentiary record, the FBI relies
on the Seidel declaration, which describes each of the seven individuals and the relevant
“circumstances” which “giv[e] rise to an inference of confidentiality.” Dkt. 89-2 at 19 (Seidel
Decl. ¶ 43).
Although the Seidel declaration does not offer a great deal of detail, the Court concludes
that it is sufficient to carry the FBI’s burden. One of the factors identified by the D.C. Circuit—
“the character of the crime at issue,” Roth, 642 F.3d at 1184—continues to weigh in favor of
confidentiality, see Dkt. 64 at 19 (noting that “[t]he crimes at issue included bank fraud and wire
fraud (based on Matthews’s mortgage and investment fraud schemes), which resulted in his
sentence of 120-months’ incarceration and five-million dollars in restitution”). And as for “the
source’s relation to the crime,” Roth, 642 F.3d at 1184, six of the seven individuals at issue
maintained either a “close association” or a “long-term association” with “one or more targets of
the investigation,” Dkt. 89-2 at 20 (Seidel Decl. ¶ 44(a)–(g))—a fact this Court has previously
found persuasive under Exemption 7(D), see Dkt. 64 at 19 (noting that the FBI’s prior declarant
“attests that [the informant] had a close relationship with the target(s)”). One individual,
moreover, “provided information pursuant to a proffer agreement,” Dkt. 89-2 at 20 (Seidel Decl.
20
¶ 44(a)), while two others “provided information pursuant to a federal grand jury subpoena,” id.(Seidel Decl. ¶ 44(b)–(c)). Although Seidel says nothing about payment of these individuals,
this factor “is not itself dispositive.” Labow v. U.S. Dep’t of Justice, 831 F.3d 523, 532 (D.C.
Cir. 2016). The Court concludes that this evidence is sufficient to support the FBI’s invocation
of Exemption 7(D).
* * *
Before granting summary judgment to the FBI with respect to these withholdings, the
Court must first discharge its “affirmative” duty to consider whether the FBI produced all
segregable, non-exempt information. Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177
F.3d 1022, 1028 (D.C. Cir. 1999). FOIA requires that the FBI engage in reasonable efforts to
“segregate and release nonexempt information,” 5 U.S.C. § 552(a)(8)(A)(ii)(II), and “[i]t is the
government that bears the burden of justifying the non-disclosure of records, including on the
ground that non-exempt records are not reasonably segregable,” Shapiro v. U.S. Dep’t of Just.,
153 F. Supp. 3d 253, 287 (D.D.C. 2016). To carry this burden, the FBI must demonstrate “with
‘reasonable specificity’ why the documents cannot be further segregated.” Armstrong v. Exec.
Off. of the President, 97 F.3d 575, 578 (D.C. Cir. 1996).
Here, both Seidel and Wilkinson describe the FBI’s efforts to produce all segregable,
non-exempt information. As for the redactions made by the FBI, Seidel declares that the FBI
determined one page “could be released in part with redactions,” as that page included “a
mixture of material that could be segregated for release and material that was withheld” without
“trigger[ing] [any] foreseeable harm to one or more interests protected by the cited FOIA
exemptions.” Dkt. 89-2 at 22 (Seidel Decl. ¶ 48(b)). Five pages, however, “required redaction
in their entirety” because “any non-exempt information on these pages was so intertwined with
21
exempt material [that] no information could be reasonably segregated for release.” Id. at 22–23
(Seidel Decl. ¶ 48(c)). Twelve pages “could be released in full without redaction as there was no
foreseeable harm to an interest protected by a FOIA exemption.” Id. at 22 (Seidel Decl. ¶ 48(a)).
With respect to those redactions recommended by the EOUSA, Wilkinson attests that he
“conducted a detailed, line-by-line review to satisfy EOUSA’s reasonable segregability
obligations,” and determined that “EOUSA has released all reasonably segregable non-exempt
information from records responsive to [Matthews’s] FOIA requests.” Id. at 72 (Wilkinson Decl.
¶¶ 19–20).
Matthews does not challenge the FBI’s segregability analysis, and the Court has no
reason to doubt the agency’s good-faith representations. The Court, accordingly, is satisfied that
the agency has produced all segregable, non-exempt records with respect to the pages the FBI re-
processed within Matthews’s 197 file following the Court’s prior decision.
C. Exhaustion
The Court concludes with the FBI’s reliance on exhaustion. The agency argues that
because Matthew has failed to pay some of the required FOIA processing fees, he has “fail[ed] to
exhaust his administrative remedies” and therefore it is “entitled to summary judgment.” Dkt.
89-1 at 24. The Court agrees with the FBI, but only for those productions for which Matthews
has not paid; because Matthews has, in fact, paid for three productions in 2019, see Minute Order
(Jan. 6, 2020), the FBI may not rely on exhaustion with respect to those productions.
FOIA authorizes each agency to “promulgate regulations . . . specifying the schedule of
fees applicable to the processing of requests . . . and establishing procedures and guidelines for
determining when such fees should be waived or reduced.” 5 U.S.C. § 552(a)(4)(A)(i). As
relevant here, the Department of Justice has issued a fee schedule governing FOIA requests,
22
which imposes—among other things—“[d]uplication fees” for most requesters. 28 C.F.R.
§ 16.10(c)(2); see id. § 16.10(b)(3) (defining “[d]uplication” as “reproducing a copy of a record,
or of the information contained in it, necessary to respond to a FOIA request”). “Where a
requester has previously failed to pay a properly charged FOIA fee . . . within 30 calendar days
of the billing date,” the FBI “may require that the requester pay the full amount due . . . before
the [FBI] . . . continues to process a pending request.” Id. § 16.10(i)(3). “Requesters may,”
however, “seek a waiver of fees by submitting a written application” making certain showings.
Id. § 16.10(k)(1). Such a request “should be made when the request is first submitted.” Id.
§ 16.10(k)(4).
Failure to pay the fees required under FOIA and its implementing regulations amounts to
a failure to exhaust, as “[e]xhaustion does not occur until the required fees are paid or an appeal
is taken from the refusal to waive fees.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 66 (D.C.
Cir. 1990). And because “[e]xhaustion of administrative remedies is generally required before
seeking judicial review,” Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004), “[a] plaintiff
seeking to bring a FOIA suit in federal court must generally exhaust her administrative remedies
before filing suit,” Bartko v. U.S. Dep’t of Just., No. 17-cv-781, 2018 WL 4608239, at *12
(D.D.C. Sept. 25, 2018); accord Pinson v. U.S. Dep’t of Just., 18-cv-486, 2020 WL 1509517, at
*15 (D.D.C. Mar. 30, 2020) (same).
Although this principle most commonly applies when the FOIA requester fails to pay
processing fees imposed prior to filing suit, see, e.g., Judicial Watch, Inc. v. FBI, 190 F. Supp.
2d 29, 33 (D.D.C. 2002), “[t]he fact that a fee request was made after the Plaintiff commenced
litigation does not excuse the Plaintiff from paying the requested fees,” Rosenberg v. ICE, 954 F.
Supp. 2d 1, 10 (D.D.C. 2013) (collecting cases). The D.C. Circuit has yet to address the question
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of exhaustion in this context—the nonpayment of fees imposed after the filing of a lawsuit—but,
like other courts to address the issue, this Court sees little logic to a rule under which, once a
FOIA requester “commence[s] an action in court to enforce his FOIA request, he [i]s relieved of
any obligation to pay for documents.” Pollack v. U.S. Dep’t of Just., 49 F.3d 115, 119 (4th Cir.
1995); see also Marcusse v. U.S. Dep’t of Just. Off. of Info. Pol’y, 959 F. Supp. 2d 130, 141
(D.D.C. 2013); Espinoza v. U.S. Dep’t of Just., 20 F. Supp. 3d 232, 243 (D.D.C. 2014).
Relying on these principles, the FBI maintains that it is entitled to summary judgment on
the ground that Matthews has failed to pay all of the required processing fees. Dkt. 89-1 at 22–
24. And, indeed, the FBI has introduced undisputed evidence that Matthews has not paid the
$45.00 he owes for the FBI’s productions in February 2020, May 2020, and June 2020. Dkt. 89-
2 at 8 (Seidel Decl. ¶ 15); see also id. at 58 (Seidel Decl. Ex. G) (notifying Matthews, following
the June 2020 production, that he had “a total amount due of $45.00” for these three
productions). As to those three productions, then, the Court will grant summary judgment to the
FBI and will relieve the agency of its “burden of justifying the non-disclosure of records” as part
of those productions. Shapiro, 153 F. Supp. 3d at 287.
But exhaustion cannot alleviate this burden for all of the FBI’s recent productions, as the
FBI itself has “confirm[ed] that it has [] received Plaintiff’s overdue fee payment, which covered
the interim productions [the FBI] made in July, August, and September 2019.” Dkt. 78 at 1; see
also Dkt. 77 at 3 (receipt for this payment). In light of these payments, which the FBI apparently
accepted, the agency cannot resort to exhaustion to fend off Plaintiff’s claims with respect to all
documents processed for release following the Court’s March 2019 opinion, Dkt. 64. But,
although the FBI’s motion offers little clarity on this point, Dkt. 89-1 at 24, that appears to be the
agency’s position. Indeed, Seidel asserts that due to “Plaintiff’s failure to pay fees[,] . . . the
24
FBI’s withholdings in the following releases are not at issue at this time: July 29, 2019; August
30, 2019; September 30, 2019; February 28, 2020; May 27, 2020; and June 30, 2020.” Dkt. 89-2
at 4 (Seidel Decl. ¶ 8 n.3). The Court cannot agree. Just as the filing of a lawsuit does not
alleviate a FOIA plaintiff’s obligations to pay subsequently imposed FOIA processing fees, see
Pollack, 49 F.3d at 119, such a plaintiff’s failure to pay the fees associated with one production
does not grant the agency license to forgo explanation of all other productions and withholdings.
Because Matthews has paid the fees associated with the July 2019, August 2019, and
September 2019 productions, Dkt. 78 at 1, the FBI’s withholdings in those releases are not
shielded by exhaustion. And because the agency has relied exclusively on exhaustion in seeking
summary judgment as to those productions, Dkt. 89-1 at 22–24, the Court must deny the FBI’s
motion regarding those the releases made in July 2019, August 2019, and September 2019.
CONCLUSION
For the foregoing reasons, the FBI’s motion is GRANTED in part and DENIED in part.
The motion is DENIED with respect the FBI’s withholdings of the names and phone numbers of
the AUSA and probation office employee associated with Matthews’s criminal prosecution,
along with the victim impact statement related to that same prosecution. The motion is also
DENIED with respect to the FBI’s withholdings in its July 2019, August 2019, and September
2019 releases, given that the FBI may not rely on the sole argument it made to justify those
withholdings—i.e., exhaustion. In all other respects, however, the motion is GRANTED.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: December 9, 2021
25