Kowal v. United States Department of Justice ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BARBARA KOWAL,
Plaintiff,
v.
Civil Action No. 18-2798 (TJK)
UNITED STATES DEPARTMENT OF
JUSTICE et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Barbara Kowal, a paralegal at the Federal Defender for the Middle District of Florida,
filed this FOIA suit against the DOJ and three of its components, the ATF, FBI, and DEA.
Kowal requested all records from the ATF and FBI pertaining to Daniel Troya, a capital
defendant represented by the Federal Defender in his post-conviction hearings. The ATF and
FBI produced documents from their records systems, but withheld some documents in whole or
in part under several FOIA and Privacy Act exemptions. The FBI also sent a subset of
documents to the DEA for review, which the DEA released in part to Kowal.
Defendants moved for summary judgment, arguing that the ATF and FBI adequately
searched for records, and that the ATF, FBI, and DEA properly withheld documents under
certain FOIA and Privacy Act exemptions and met their duty to disclose all reasonably
segregable portions of the records. Kowal then cross-moved for summary judgment, arguing
that the searches were deficient because the ATF and FBI failed to use adequate search terms and
search all relevant records systems, and that the ATF, FBI, and DEA failed to adequately justify
the exemptions at issue, improperly withheld information in the public domain, and failed to
disclose all reasonably segregable information. For the reasons explained below, the Court will
grant Defendants’ motion and deny Kowal’s as to her claims against the ATF and the adequacy
of the FBI’s search, and otherwise deny the motions without prejudice.
Background
Kowal’s office began representing Daniel Troya (“Troya”) in his capital post-conviction
proceedings in April 2015. ECF No. 1 (“Compl.”) ¶ 8. Kowal requested all records from the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and Federal Bureau of
Investigation (FBI) pertaining to Troya under the Freedom of Information Act (FOIA). Id.
¶¶ 13, 18, 19. Kowal submitted one FOIA request to the ATF and two requests to the FBI. 1 Id.
The FBI sent a subset of the documents that it identified in response to Kowal’s first request to it
to the Drug Enforcement Administration (DEA) and referred Kowal’s entire second request to
the ATF. Id. ¶¶ 16, 21. The DEA informed Kowal that it had already processed most of the
documents by responding to a previous request she had directed to it, and released the remaining
documents to her, in part, through the FBI. Id. ¶ 17; ECF No. 1-5; ECF No. 1-6. Because the
Court has already addressed the DEA’s response to Kowal’s previous FOIA request, Kowal v.
DOJ, No. 18-cv-938 (TJK), 2020 WL 2849889 at *1 (D.D.C. June 1, 2020) (“Kowal I”), it need
not do so again here.
A. FBI
In June 2015, Kowal submitted a FOIA request to the FBI seeking documents related to
Troya’s prosecution. Compl. ¶ 13. She requested “all documents, files, records, etc. pertaining
to any investigation, arrest, indictment, conviction, sentencing, incarceration, and/or parole of . . .
Daniel Troya (a/k/a ‘Homer’), DOB: 04/22/1983” and cited his federal criminal charges. Id.; see
ECF No. 1-1.
1
The first request asked for a copy of the FBI’s files, and the second for a copy of the ATF’s
files. ECF No. 1-1; ECF No. 1-7.
2
The FBI identified and reviewed records responsive to Kowal’s FOIA request, and from
those it released 134 pages in full, withheld 141 pages in their entirety, and sent some of its
records to the DEA for further review. Compl. ¶ 16. 2 As for the documents it withheld without
DEA review, the FBI invoked FOIA Exemptions 6, 7(C), 7(D), 7(E), and Privacy Act Exemption
(j)(2). Id.; see ECF No. 1-4; ECF No. 19-6 (“Hardy Decl.”) ¶ 7 n.3. Exemption (j)(2) allows
heads of agencies to exempt from disclosure any system of records with a principal function of
any activity pertaining to criminal law enforcement. 5 U.S.C. § 552a(j)(2). Exemption 6
protects information in personnel and medical files when disclosure would “constitute a clearly
unwarranted invasion of personal privacy.” Id. § 552(b)(6). The remaining exemptions apply to
information compiled for law enforcement purposes: Exemption 7(C) protects against
unwarranted invasions of personal privacy; Exemption 7(D) protects the identities of confidential
sources or information furnished by confidential sources; and Exemption 7(E) protects law
enforcement techniques and procedures. Id. §§ 552(b)(7)(C), (b)(7)(D), (b)(7)(E).
Of the 83 pages the FBI sent to the DEA, most had already been processed in connection
with the previous FOIA request made by Kowal; the DEA returned the remaining pages to the
FBI, which released them in part to Kowal. Compl. ¶ 17; ECF No. 1-5; ECF No. 1-6. 3 For these
2
Kowal alleges that the FBI reviewed 416 pages, but she arrives at that number by including
both the 83 pages the FBI sent to the DEA as well as the 58 pages the DEA withheld in part.
Compl. ¶ 16. The FBI’s response to her FOIA request states that it reviewed 275 pages, of
which 134 pages were released and 141 pages withheld. ECF No. 1-4; see also ECF No. 10
¶ 16; ECF No. 19-6 (“Hardy Decl.”) ¶ 7.
3
In its response to Kowal’s FOIA request, the FBI stated that it referred 83 pages to the DEA,
but the DEA later clarified in a letter to Kowal that the FBI sent 68 pages as a referral and 15
pages as a consultation. ECF No. 1-4; ECF No. 1-6. That explains why the DEA responded
directly to Kowal about the 68 pages, but returned the 15 pages to the FBI for release in part to
Kowal. See ECF No. 1-5; ECF No. 1-6; see also Hardy Decl. ¶ 79 (“With consultations, the FBI
asks the other agency how it would like its information in FBI records to be handled [and]
3
documents, the FBI, based in part on the DEA’s recommendations, invoked Privacy Act
Exemption (j)(2) and FOIA Exemptions 3, 6, 7(C), 7(D), 7(E), and 7(F). ECF No. 1-5.
Exemption 3 spares from disclosure matters that must be withheld under statute, 5 U.S.C.
§ 552(b)(3), and Exemption 7(F) protects against endangering the life or physical safety of any
person, id. § 552(b)(7)(F).
In its declaration supporting its motion, the FBI states that it conducted its search for
responsive documents within its Central Records System (CRS), its “extensive system of records
. . . compiled and maintained by the FBI in the course of fulfilling its integrated missions and
functions as a law enforcement, counterterrorism, and intelligence agency” that “spans the entire
FBI organization and encompasses the records of FBI Headquarters . . . FBI Field Offices, and
FBI Legal Attache Offices . . . worldwide.” Hardy Decl. ¶¶ 21, 34. The CRS uses an index
search methodology that is “reasonably expected to locate responsive material within the vast
CRS since the FBI indexes pertinent information into the CRS to facilitate retrieval to serve its
primary law enforcement and intelligence gathering functions.” Id. ¶ 32. In searching for
records responsive to Kowal’s request, the FBI used its Automated Case Support (ACS) and
Universal Index (UNI) to capture data that had been indexed in its older automated systems. Id.
¶¶ 26, 29. The FBI then conducted an index search in Sentinel, a case management system in
responds to the requester about the disposition of the information,” and “[w]ith referrals, the FBI
sends the record back to the agency from which it originated, and that agency decides the
disposition of the record and responds directly to the requester.”). Although the FBI’s response
said it released all 15 pages, Kowal clarifies that 12 pages were released in part and 3 pages were
withheld in their entirety. See ECF No. 1-5; Compl. ¶ 17. Then, while preparing its declaration,
the DEA determined that the FBI had transmitted 67 pages for referral and 16 pages for
consultation. See ECF No. 19-5 (“Hertel Decl.”) ¶ 8. It is unclear whether Kowal ever received
or knew about the additional withheld page. Id. ¶ 30. The referred pages previously processed
by the DEA are part of Kowal’s other case before the Court. Id. ¶ 6; ECF No. 1-6; see also
Complaint ¶ 12, Kowal I.
4
place since July 2012 in which “all FBI generated records are created electronically in case
files,” to “ensure it captured all relevant data indexed.” Id. ¶¶ 27, 29.
In sum, the FBI conducted index searches in the CRS for the terms “Daniel Anthony
Troya” and “Homer Troya” (referencing Troya’s alias) using the ACS/UNI and Sentinel
automated indices, from which it located and processed one main file and one cross-reference
record. Id. ¶ 33. The FBI characterizes a main file as a “main index entry . . . created for each
individual or non-individual that is the subject or focus of an investigation,” and the “main
subject(s) are identified in the case title of most documents in a file.” Id. ¶ 23. In contrast, a
“cross-reference record” is a “reference index entry . . . created for individuals or non-individuals
associated with the case [who] are not the main subject(s) or focus of an investigation,” and
“[r]eference subjects are typically not identified in the case title of a file.” Id. Because the CRS
is “where the FBI indexes information about individuals, organizations, events, and other
subjects of investigative interest for future retrieval,” the FBI maintains that it adequately
searched for records concerning “any investigation, arrest, indictment, conviction, sentencing,
incarceration, and/or parole” of Troya. Id. ¶ 34.
The FBI also provided a Vaughn index of the documents it withheld in part or in full
based on FOIA and Privacy Act exemptions. See ECF No. 19-7 at 73–85 (“FBI Index”).4 The
index includes entries for the documents sent to the DEA for consultation. See id., Bates Nos.
31–46; ECF No. 19-5 (“Hertel Decl.”) ¶ 10. 5 It works in tandem with a declaration from the FBI
4
The citations in this Memorandum Opinion and Order adopt the pagination in the ECF-
generated headers of the parties’ filings.
5
As mentioned previously, the DEA received 16 pages from the FBI for consultation. Hertel
Decl. ¶ 8.
5
and, to some extent, a declaration from the DEA, which describe the types of general information
withheld under each exemption. See Hardy Decl. ¶¶ 38–78; Hertel Decl. ¶¶ 11–29.6 The
Vaughn index uses a “coded format” – that is, each entry in the index provides the applicable
Bates number for the page, a short description where a page has been withheld in full, and a
checklist of exemptions claimed for the page that corresponds to coded categories describing the
information withheld. See FBI Index.
B. ATF
Kowal submitted two more FOIA requests for the same records in August 2017: one to
the FBI requesting the ATF’s files; and one to the ATF directly. Compl. ¶¶ 18–19; ECF No. 1-7;
ECF No. 1-8. The FBI soon informed Kowal that her request was being routed to the ATF for
processing. Compl. ¶ 21; ECF No. 1-10. The ATF identified and reviewed 467 pages it found
responsive to Kowal’s FOIA request, and from those pages it released 61 pages in full and 212
pages in part, and withheld 194 pages in their entirety. Comp. ¶ 25; ECF No. 1-14. The ATF
invoked FOIA Exemptions 6, 7(C), and 7(E) in its decision to withhold documents in whole or in
part. Compl. ¶ 25; see ECF No. 1-14.7 The ATF later informed Kowal that its response to her
FOIA request incorporated the request that the FBI routed to the ATF. Compl. ¶ 28; ECF No. 1-
6
The DEA represents, and the FBI Index confirms, that although the DEA made
recommendations on the consultation pages, the FBI made the final determinations. Compare
Hertel Decl. ¶¶ 30–32 (recommending four documents for withholding and seven documents for
release in full), with FBI Index, Bates Nos. 31–46 (reflecting four documents withheld in full and
five documents released in full).
7
Kowal alleges that the ATF also invoked Exemptions 7(D) and (F), as well as (j)(2), but the
record does not support this assertion. See Compl. ¶ 25; ECF No. 1-14; ECF No. 10 ¶ 25. It also
appears that the ATF removed its Exemption 3 designations and then released previously
withheld documents to Kowal in its supplemental response. See, e.g., ECF No. 19-3 at 4
(“Disclosure Decision determined that [this document] should not have been withheld under
Exemption 3. A partially redacted version of the document was later produced to Plaintiff in a
supplemental release.”).
6
17. After Kowal appealed, the ATF released in part one more page to her. Compl. ¶ 29. The
ATF also located another 13 pages responsive to Kowal’s request when it was preparing its
declaration; it released them to her in a supplemental response. ECF No. 19-2 (“Siple Decl.”) at
5–6.
In its declaration supporting its motion, the ATF states that it conducted its search for
responsive documents in the “two systems of records where ATF records of criminal
investigations are housed,” “N-Force” and the Treasury Enforcement Communications System
(TECS). Siple Decl. at 2. The ATF explains that “[n]o other record system used or maintained
by ATF is likely to have records of specific criminal investigations undertaken by or involving
the ATF.” Id. The ATF searched “Daniel Troya” in both databases and located the criminal
investigation at issue in Kowal’s FOIA requests. Id. at 4. The ATF then worked with its Miami
Field Division, including “agents knowledgeable of the case,” to retrieve the entire case file. Id.
The ATF also provided a Vaughn index of the records it withheld, see ECF No. 19-3
(“ATF Index”), which works in tandem with the ATF’s declaration, see Siple Decl. at 6–8.
Legal Standard
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to summary judgment as a matter of
law.” Fed. R. Civ. P. 56. Summary judgment is appropriate when, “viewing the evidence in the
light most favorable to the non-movants and drawing all reasonable inferences accordingly, no
reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.-Islamic Relations
Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016).
FOIA “requires federal agencies to disclose information to the public upon reasonable
request unless the records at issue fall within specifically delineated exemptions.” Judicial
Watch, Inc. v. FBI, 522 F.3d 364, 366 (D.C. Cir. 2008). It creates a “strong presumption in favor
7
of disclosure,” and “places the burden on the agency to justify the withholding of any requested
documents.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). If information is already in
the public domain, an agency cannot invoke an otherwise valid exemption to withhold it.
Students Against Genocide v. Dep’t of State, 257 F.3d 828, 836 (D.C. Cir. 2001). When an
agency withholds portions of a record, it must still disclose “[a]ny reasonably segregable portion
. . . after deletion of the portions which are exempt.” 5 U.S.C. § 552(b).
A court reviewing a FOIA action may grant summary judgment based on the agency’s
declarations “[i]f an agency’s affidavit describes the justifications for withholding the
information with specific detail, demonstrates that the information withheld logically falls within
the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence
of the agency’s bad faith.” Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 619
(D.C. Cir. 2011). But the agency may not rely on “conclusory and generalized allegations of
exemptions” in its affidavits. Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973).
Analysis
A. Adequacy of the Agencies’ Searches
Kowal challenges both agencies’ searches. Each agency must show that it conducted a
search “reasonably calculated to uncover all relevant documents.” Truitt v. Dep’t of State, 897
F.2d 540, 542 (D.C. Cir. 1990); see DiBacco v. U.S. Army, 795 F.3d 178, 191 (D.C. Cir. 2015).
Agencies can satisfy this burden through a “reasonably detailed affidavit, setting forth the search
terms and the type of search performed, and averring that all files likely to contain responsive
materials (if such records exist) were searched.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57,
68 (D.C. Cir. 1990). Such affidavits are given “a presumption of good faith, which cannot be
rebutted by purely speculative claims about the existence and discoverability of other
8
documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quotation
marks omitted).
A court judges a FOIA search “not by the fruits of the search, but by the appropriateness
of the methods used to carry out the search” because “particular documents may have been
accidentally lost or destroyed, or a reasonable and thorough search may have missed them.”
Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). The agency need not
search all its records systems, but it “cannot limit its search to only one record system if there are
others that are likely to turn up the information requested.” Oglesby, 920 F.2d at 68. An agency
that restricts its search to certain records systems must “explain in its affidavit that no other
record system was likely to produce responsive documents.” Id. Agencies need not use every
possible search term, Canning v. U.S. Dep’t of State, 346 F. Supp. 3d 1, 14 (D.D.C. 2018), and
“there is no bright-line rule requiring agencies to use the search terms proposed in a FOIA
request,” Physicians for Human Rights v. U.S. Dep’t of Def., 675 F. Supp. 2d 149, 164 (D.D.C.
2009). “[P]ositive indications of overlooked materials” may suggest that a search was
inadequate, Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 327 (D.C. Cir. 1999), but the
Court must evaluate the search by whether it was “reasonably calculated to discover the
requested documents, not whether it actually uncovered every document extant,” SafeCard
Servs., Inc., 926 F.2d at 1201. If the agency meets the standard of reasonableness, “a court need
not quibble over every perceived inadequacy in an agency’s response.” Physicians for Human
Rights v. U.S. Dep’t of Def., 675 F. Supp. 2d 149, 164 (D.D.C. 2009).
Kowal asserts that both the FBI and ATF failed to search databases and files likely to
contain responsive materials, failed to use search terms and methods of searching likely to locate
all relevant records, and in the case of the ATF, overlooked responsive materials. ECF No. 21
9
(“Pl’s Br.”) at 24, 40–41. For the reasons explained below, the Court finds that both agencies
conducted adequate searches.
1. FBI
First, Kowal argues that the FBI’s search was inadequate because the only database it
searched was the CRS, which uses an index search methodology, and it should have also
conducted a text-based search in its Electronic Case File (“ECF”) database. Pl’s Br. at 40, 42.
To be sure, “the FBI does not index every individual name or other subject matter” that its
records may contain, id. at 43; Hardy Decl. ¶ 24, and searches limited to indexed terms “are
identified at least in part by discretionary decisions left to case agents,” Negley v. FBI, 658
F. Supp. 2d 50, 58 (D.D.C. 2009). But the ECF only contains text-searchable versions of
documents already in the CRS. Pl’s Br. at 43. And the FBI states that the CRS is “an extensive
system of records consisting of applicant, investigative, intelligence, personnel, administrative,
and general files compiled and maintained by the FBI” that “spans the entire FBI organization.”
Hardy Decl. ¶ 21; ECF No. 19 (“Def’s Br.”) at 5–6. Given that Kowal’s request was for
documents “pertaining to any investigation, arrest, indictment, conviction, sentencing,
incarceration, and/or parole of” Troya, ECF No. 1-1, those documents would all likely be housed
in the CRS. And the FBI has asserted that its search of the CRS was reasonably calculated to
return all responsive records, even with its index search methodology, because the CRS indexes
information about individuals such as Troya specifically for the purpose of future retrieval.
Hardy Decl. ¶ 34.
Kowal fails to explain why the FBI was required to search its ECF database too. She
suggests that the record “leaves substantial doubt as to the sufficiency of the search,” but does
not show how. Pl’s Br. at 41. Instead, Kowal cites Shapiro v. DOJ, 944 F.3d 940 (D.C. Cir.
2019), as proof that the ECF database exists and that, because it is text-searchable, “even
10
misplaced and misfiled records will show up in such a search, as will records that include names
and events for which the records were never indexed.” Pl’s Br. at 43. But the FBI’s decision to
not use its ECF database does not render its search inadequate. The FBI states that it conducted
an index search in the CRS using ACS/UNI and Sentinel, and that “these two index searches in
most cases represent the most reasonable means for the FBI to locate potentially responsive
records” because they “offer access to a comprehensive, agency-wide set of indexed data on a
wide variety of investigative and administrative subjects.” Hardy Decl. ¶ 29 (cleaned up).
Troya, it should be noted, is not someone alleged to have a tenuous or passing connection to an
FBI investigation; in fact, he was the subject of a federal criminal prosecution. Thus, a search of
the CRS could reasonably be expected to produce the requested records pertaining to Troya, and
the FBI’s search constituted a good-faith effort to locate the information requested by Kowal.
See Oglesby, 920 F.2d at 68.8
Second, Kowal argues that the FBI’s use of the search terms “Daniel Anthony Troya”
and “Homer Troya” was inadequate because: (1) since “Homer” is an alias, the search term
“Homer Troya” would not yield documents where only the word “Homer” appeared; (2) the FBI
should have also searched Troya’s date of birth and social security number; and (3) the FBI
should have searched variations of Troya’s name since it can conduct three-way phonetic
8
Besides her issue with the FBI’s decision to not use text-based searches, Kowal argues that the
FBI also failed to provide a sufficient explanation as to why responsive documents would not be
found in databases other than the CRS. Pl’s Br. at 44. However, the FBI “has discretion to
confine its inquiry to a central filing system if additional searches are unlikely to produce any
marginal return” when “a request does not specify the locations in which an agency should
search.” Campbell v. DOJ, 164 F.3d 20, 28 (D.C. Cir. 1998). And the FBI has shown that the
CRS is where the FBI “indexes information about individuals, organizations, events, and other
subjects of investigative interest for future retrieval.” Hardy Decl. ¶ 34. It was therefore
reasonable for the FBI to confine its search to the CRS, and Kowal has failed to establish that the
records produced by the CRS search suggest “the existence of documents that [the FBI] could
not locate without expanding the scope of its search.” Campbell, 164 F.3d at 28.
11
searches of names in its databases. Pl’s Br. at 40–41. But the FBI need not use every search
term and variation imaginable to Kowal; it need only conduct a search “reasonably calculated to
uncover all relevant documents.” Truitt, 897 F.2d at 542; see also Tracy v. DOJ, 191
F. Supp. 3d 83, 92 (D.D.C. 2016) (finding it was reasonable to not use an individual’s date of
birth as a search term in querying the CRS where his name produced sufficient information).
The terms used by the FBI here meet that test. Kowal’s wish for the FBI to have used more
search terms does not make the search itself inadequate, and she has no right to dictate the FBI’s
scope of its search. See, e.g., Mobley v. CIA, 806 F.3d 568, 582 (D.C. Cir. 2015); see also
Canning, 346 F. Supp. at 14 (noting that an “agency need not . . . permit the FOIA requester to
dictate the search terms in the course of litigation”). In fact, the FBI’s index search system is
designed to store “information about individuals, organizations, events, and other subjects of
investigative interest for future retrieval,” and through its search, the FBI located a main file on
Troya, a file “created for each individual that is the subject or focus of an investigation” where
the “main subject is identified in the case title of most documents in the file.” Hardy Decl. ¶¶ 23,
34 (cleaned up).
2. ATF
Turning to the ATF, Kowal similarly argues that the ATF’s use of only one search term,
“Daniel Troya,” to search for responsive documents rendered its search deficient because she
also supplied the ATF with Troya’s alias name, “Homer,” and his date of birth. Pl’s Br. at 25;
see ECF No. 1-1 (requesting “all documents, files, records, etc. pertaining to any investigation,
arrest, indictment, conviction, sentencing, incarceration, and/or parole of . . . Daniel Troya (a/k/a
‘Homer’), DOB: 04/22/1983” and noting his criminal charges). Again, however, the ATF is
simply required to make “a good faith effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the information requested.” Oglesby, 920
12
F.2d at 68. And in doing so, it may rely on the language of the FOIA request to construct its
search.9 See Whitmore v. DOJ, 132 F. Supp. 3d 69, 77 (D.D.C. 2015) (“An agency may rely on
the plain language of the request itself and proceed accordingly.”). But it is not required to use
the search terms proposed in a FOIA request.10 See Ahanmisi v. U.S. Dep’t of Labor, 859
F. Supp. 2d 7, 11 (D.D.C. 2012). The absence of “Homer” as a search term does not undermine
the reasonableness of the ATF’s search, particularly when considering that the ATF was able to
quickly locate its investigative file on Troya and retrieved the file with “agents knowledgeable of
the case.” See Siple Decl. at 4.11
9
The ATF’s interpretation of Kowal’s FOIA request was not “an unreasonable narrowing . . . of
the actual request.” Pl’s Br. at 26; ECF No. 1-8. The ATF’s construal of Kowal’s FOIA request
as “one seeking any records of ATF’s role in the federal criminal investigation of Daniel Troya”
tracks Kowal’s own understanding of her request. ECF No. 19-2 (“Siple Decl.”) at 4; see
Compl. ¶ 19 (stating that Kowal was “seeking disclosure of documents related to Mr. Troya’s
federal criminal case and prosecution” from the ATF).
10
Kowal argues that she “plainly requested an alias search here,” Pl’s Br. at 26, and cites
Davidson v. United States, which held that “an agency is under no obligation to search its records
for information such as aliases, unless that information is specifically requested.” 264
F. Supp. 3d 97, 109 (D.D.C. 2017). But Davidson said nothing about whether an agency must
use an alias for a search when provided in a request. The requester there included no aliases in
his request, and the Court found no agency obligation to search for records that “do not mention
or specifically discuss” the requester because an alias search would have required the agency to
“divine [the requester’s] intent.” Id. As discussed above, the ATF did not have to use the search
term “Homer,” and the search conducted using Troya’s full name alone was reasonable. See
Nolen v. DOJ, 146 F. Supp. 3d 89, 98 (D.D.C. 2015) (“[A] FOIA requester’s detailed search
instructions cannot dictate the reasonableness of the scope of an agency’s search”).
11
Kowal also cites Canning v. DOJ, 919 F. Supp. 451 (D.D.C. 1994), to support the proposition
that omitting Troya’s alias from the search made it inadequate. Pl’s Br. at 26. But Canning is
distinguishable. In Canning, the FBI’s search for records using the subject’s name, Charles
Zimmerman, returned no results, even though the FBI had investigated him. 919 F. Supp. at 460.
Because the FBI knew that Zimmerman was also known by Charles Cunningham, the court held
that its refusal to search again using that alternate name made its search inadequate. Id. at 460–
61. There are no similar positive signs that records have been overlooked here.
13
Second, Kowal argues that the ATF’s search was also deficient because it failed to
provide a sufficient explanation as to why responsive documents would not be found in
databases other than the two that it searched. Pl’s Br. at 27. The ATF states that it conducted its
search for responsive documents using N-Force and TECS, the two electronic systems of records
where it maintains its criminal investigations. Def’s Br. at 5; Siple Decl. at 2. Using these
systems, the ATF states that it “quickly identified a single criminal investigation . . . out of the
Miami Field Division relating to Daniel Troya,” and “coordinated with the Miami Field
Division, including agents knowledgeable of the case, to retrieve the entirety of the criminal
investigation case file.” Siple Decl. at 4 (emphasis added); see Def’s Br. at 5. The ATF has thus
shown that it “made a good faith effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the information requested.” Oglesby, 920
F.2d at 68. An agency should search for responsive records in accordance with how its records
are maintained, as the ATF did here. See Greenberg v. Dep’t of Treasury, 10 F. Supp. 2d 3, 13
(D.D.C. 1998).
Finally, Kowal argues that the ATF’s search is inadequate because the record shows the
existence of overlooked records. Pl’s Br. at 27–28. In support of her argument, Kowal
references: (1) the ATF’s supplemental disclosure of records she claims were not a part of those
originally identified as responsive; and (2) the over two hundred “DVDs, CDs, audio recordings,
and photos of evidence” in her possession that are responsive to her FOIA requests, and that (in
her view) the ATF should have produced to her. Id. at 28.
First, about the supplemental disclosure: while the ATF was preparing its declaration, it
identified 13 more pages of responsive records that were part of the original investigative file in
the case. See Siple Decl. at 5 (“When I reviewed the investigative file in this case, as I prepared
14
this declaration, I determined that some additional responsive material should be released to
Plaintiff.”); see also ATF Index (noting which previously withheld documents were released to
Kowal). In other words, despite Kowal’s speculation that the records “turned up” by some new,
unexplained search, Pl’s Br. at 28, the agency merely determined that prior material reviewed in
the case file should be disclosed. And as for the absence of items allegedly in Kowal’s
possession, she has not explained why, just because she has them, the ATF must also have them
such that it could produce them in response to a FOIA request. 12 See id. at 27–28. While
“positive indications of overlooked materials” may show that a search was inadequate, the
standard typically applies when the requester can show that the agency itself ignored those
indications when it conducted its search. Valencia-Lucena, 180 F.3d at 327. Since “the
adequacy of a FOIA search is not judged on results, but rather on the good faith search itself,”
the missing items themselves do not show that the search was inadequate. Carter, Fullerton &
Hayes, LLC v. FTC, 637 F. Supp. 2d 1, 7 (D.D.C. 2009). The ATF may simply not have them,
and even if it does, “a reasonable and thorough search may have missed them” for whatever
reason. Iturralde, 315 F.3d at 315; see Concepcion v. FBI, 606 F. Supp. 2d 14, 30 (D.D.C. 2009)
(finding that the plaintiff’s “speculation as to the existence of additional records . . . does not
render the search[] inadequate”); Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 472 F.3d
312, 318 (D.C. Cir. 2006) (finding that the requester’s “assertion that an adequate search would
have yielded more documents is mere speculation”).
12
Kowal cites Valencia-Lucena v. U.S. Coast Guard to support her argument that the ATF’s
search was inadequate, but she has not shown that the ATF overlooked records here in the way
that the Coast Guard did in that case. 180 F.3d 321, 327 (D.C. Cir. 1999). There, the Coast
Guard identified a National Archives center likely to have responsive records, but declined to
search it. Id. The issue was not that the Coast Guard’s search missed certain documents, but that
the design of the search ignored a location likely to contain them. Id.15
B. Sufficiency of Vaughn Indices
Kowal also challenges the sufficiency of the Vaughn indices provided by the FBI and
ATF. Because FOIA requesters face information asymmetry that favors the agency, courts
evaluating claimed FOIA exemptions must rely on the agency’s representation of the materials it
withholds. See King v. DOJ, 830 F.2d 210, 218 (D.C. Cir. 1987). A sufficiently detailed
Vaughn index enables that evaluation. See Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C.
Cir. 2006). An agency must use a Vaughn index to explain withheld information by
“specify[ing] in detail which portions of the document are disclosable and which are allegedly
exempt.” Vaughn, 484 F.2d at 827.
A court evaluates a Vaughn index on its function, not its form. Keys v. DOJ, 830 F.2d
337, 349 (D.C. Cir. 1987). An adequate Vaughn index functions in part to enable the reviewing
court to determine whether the agency properly invoked FOIA exemptions. Lykins v. DOJ, 725
F.2d 1455, 1463 (D.C. Cir. 1984). It does so if it “provide[s] a relatively detailed justification,
specifically identifying the reasons why a particular exemption is relevant and correlating those
claims with the particular part of a withheld document to which they apply.” Mead Data
Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). Thus, an index
must “state the exemption claimed for each deletion or withheld document, and explain why the
exemption is relevant.” Founding Church of Scientology of Wash., D.C., Inc. v. Bell, 603 F.2d
945, 949 (D.C. Cir. 1979).
Kowal argues that the Vaughn indices provided by the FBI and ATF are deficient because
they do not provide enough information on the documents withheld that would allow her to
assess the propriety of the asserted FOIA exemptions. Pl’s Br. at 8. For the reasons explained
below, the Court agrees with Kowal as to the FBI’s Vaughn index, but finds the ATF’s Vaughn
index adequate.
16
1. FBI
Kowal is correct that some entries in the FBI’s Vaughn index do not “provide enough
information to reasonably discern why some pages of a document were withheld, while others
were released with redactions” and “are either incomplete or so vague as to make it impossible to
discern why the claimed exemption is justified.” Id. at 45. The FBI defends its Vaughn index,
which uses a coded format, by citing two cases in which courts found the use of a coded format
sufficient, but it fails to acknowledge that in those cases, the courts also had either: (1) the
associated redacted pages of disclosed records, Fischer v. DOJ, 596 F. Supp. 2d 34, 44 (D.D.C.
2009); or (2) an affidavit and coding that adequately described the documents, Blanton v. DOJ,
64 F. App’x 787, 789 (D.C. Cir. 2003). The Court does not take issue with the FBI’s use of a
coded system, but rather with the difficulty of understanding how the codes apply to the
documents in its Vaughn index, when the redacted pages are not in the record, and the index
itself does not provide document descriptions for redacted pages. See, e.g., Judicial Watch, 449
F.3d at 145 (“Any measure will adequately aid a court if it provides a relatively detailed
justification, specifically identifies the reasons why a particular exemption is relevant, and
correlates those claims with the particular part of a withheld document to which they apply.”)
(cleaned up). The Court must be able to understand with particularity which portions the FBI
seeks to withhold under the exemptions claimed. See Vaughn, 484 F.2d at 827–28. On this
record, it cannot.
The FBI’s Vaughn index is also inadequate with respect to the redactions in pages that
the FBI released to Kowal following its consultation with the DEA. See ECF No. 21-6. For
example, in one of a few such instances, the FBI’s Vaughn index shows that the fourth page in
the FBI’s release was redacted under its coded exemption (b)(6)-1 and (b)(7)(C)-1, as well as
Exemptions 7(C) and 7(F) per the DEA. See FBI Index at Bates No. 34; ECF No. 21-6 at 9.
17
However, the redacted document also mentions Exemption 7(E), which is described nowhere in
the corresponding entry of the Vaughn index. ECF No. 21-6 at 9. Further, the two pages
released in part from an “OCDETF Narrative Summary” are heavily redacted under Exemptions
j(2) and 7(C) by the DEA, but neither the FBI’s Vaughn index, the DEA’s declaration, nor the
FBI’s declaration explains the basis for redacting these pages under these two exemptions. See
ECF No. 21-6 at 14–15; FBI Index at Bates Nos. 39–40; Hertel Decl. ¶¶ 11, 15–22 (making
conclusory assertions on Exemptions j(2) and 7(C)); Hardy Decl. ¶ 82 (“DEA redacted certain
information . . . and has described its reasoning for protecting this information in a separate
declaration.”). The FBI’s Vaughn index therefore fails “to enable the Court and the opposing
party to understand the withheld information in order to address the merits of the claimed
exemptions.” Judicial Watch, 449 F.3d at 150.
Because the Court cannot determine whether the FBI has properly invoked its asserted
FOIA exemptions, it will be provided the opportunity to submit a revised Vaughn index, and, if
necessary, to submit redacted versions of the documents withheld in full or in part that help
explain which portions of the documents have been withheld under which exemptions, and the
factual basis for each portion of the documents withheld. 13
2. ATF
Kowal argues that the “terse, repetitive descriptions” in the ATF’s Vaughn index
“provide little to no useful information about the individual documents in question,” and the
index “just repeats boilerplate language about the claimed exemptions for each document.” Pl’s
Br. at 30. But in looking at the ATF’s Vaughn index alongside its declaration and the redacted
13
Because of the FBI’s inadequate Vaughn index, the Court need not decide whether the FBI
improperly withheld any information already in the public domain or any segregable, non-
exempt information.
18
documents from its supplemental response to Kowal, the nature of the redacted material becomes
clear. See Judicial Watch, 449 F.3d at 145.
The ATF’s Vaughn index works in tandem with its declaration, which describes the types
of general information withheld under each exemption. See Siple Decl. at 6–8. Each entry in the
index provides the document number, the corresponding Bates number, the page(s) at issue, the
document date, whether the page was withheld in full or in part, a short document description, a
list of exemptions claimed for the page, and the agency’s justification. See ATF Index. The
declaration provides five categories under which 30 documents were withheld in full. See Siple
Decl. at 7.14 The declaration also states that “[f]or the vast majority of redactions under
Exemptions 6 and 7(C), [the] ATF simply redacted individual names of third-party witnesses,
potential witnesses, and suspects,” and “very limited redactions [were applied] to six (6)
documents to prevent the disclosure of sensitive techniques or procedures for law enforcement
investigations” under Exemption 7(E). Id. at 7–8.
An agency may not claim exemptions too broadly, see Mays v. DEA, 234 F.3d 1324,
1328 (D.C. Cir. 2000), but “categorization and repetition provide efficient vehicles by which a
court can review withholdings that implicate the same exemption for similar reasons,” Judicial
14
Kowal argues that the ATF fails to explain why those 30 documents could not be released in
redacted form. Pl’s Br. at 30. But the ATF’s declaration explains that those documents “are
sensitive law enforcement records relating to specific witnesses and suspects,” and all five
categories it provides represent that the records pertain to individuals other than Troya. Siple
Decl. at 7. The ATF further clarifies that it applied redactions to “carefully protect information
that either by itself, or if read in combination with other public information, could result in the
disclosure of the identities of non-law enforcement third parties contained within ATF
investigation records.” Id. at 8. The categories themselves suggest that were the ATF to redact
these documents, there would likely be nothing left. See id. at 7 (listing “criminal court records,”
“Department of Motor Vehicle records,” “finger print cards or examinations,” “TECS queries
and personal criminal histories,” and “property forfeiture records,” all for individuals other than
Troya).
19
Watch, 449 F.3d at 147. The ATF’s “index tie[s] each individual document to one or more
exemptions, and the [ATF’s] declaration link[s] the substance of each exemption to the
documents’ common elements.” Id. Reviewing the pages the ATF released to Kowal in its
supplemental response, the Court finds that the ATF consistently redacted individual names and
other personal identifying information under Exemptions 6 and 7(C). See ECF No. 19-4. Those
documents correspond to entries on the Vaughn index, for which the ATF provided thorough
document descriptions, see ATF Index at Nos. 92–99, and the ATF’s declaration confirms the
types of information redacted under Exemptions 6 and 7(C). See Siple Decl. at 7. Accordingly,
the ATF’s Vaughn index adequately enables the Court to review the agency’s withholding. See
Lykins, 725 F.2d at 1463.
C. The ATF’s Withholdings
The ATF withheld third-party identifying information and third-party records under
Exemptions 6 and 7(C). Siple Decl. at 6–7. Kowal argues that the ATF’s declaration “fails to
explain how the agency conducted its balancing of private versus public interests” under
Exemptions 6 and 7(C), and the ATF failed to make a showing or assert that “release of the
documents would constitute an unwarranted invasion of personal privacy.” Pl’s Br. at 30. 15
All information that “applies to a particular individual” qualifies for consideration under
Exemption 6. U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982); see Akin, Gump,
Strauss, Hauer & Feld, L.L.P. v. DOJ, 503 F. Supp. 2d 373, 381 (D.D.C. 2007) (“Congress’[s]
primary purpose in drafting Exemption 6 was to provide for confidentiality of personal
matters.”). And as for Exemption 7(C), “the standard for evaluating a threatened invasion of
privacy interests resulting from the disclosure of records compiled for law enforcement purposes
15
The ATF also redacted six documents under Exemption 7(E), but Kowal does not challenge
the redactions under this exemption. See Siple Decl. at 8.
20
is somewhat broader than the standard applicable to personnel, medical, and similar files” under
Exemption 6. DOJ v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989). Thus,
because “Exemption 7(C) is more protective of privacy than Exemption 6,” U.S. Dep’t of Def. v
FLRA, 510 U.S. 487, 496 n.6 (1994), and the records at issue were compiled for law enforcement
purposes, the Court need only consider whether the ATF properly invoked Exemption 7(C)—“all
information that would fall within the scope of Exemption 6 would also be immune from
disclosure under Exemption 7(C),” Roth v. DOJ, 642 F.3d 1161, 1173 (D.C. Cir. 2011).
Because Kowal does not dispute that the requested records about Troya’s criminal
prosecution are law enforcement files subject to review under Exemption 7(C), the Court will
proceed to evaluating the propriety of the ATF’s redactions by balancing “the privacy interests
involved against the public interest in disclosure.” SafeCard Servs., 926 F.2d at 1205. The ATF
states that it withheld information under FOIA Exemptions 6 and 7(C) “to protect the individual
privacy interests of individual third parties named or identified in law enforcement records.”
Siple Decl. at 6. And “[c]onsistent with the careful balancing approach,” it applied redactions
“narrowly and only to the extent necessary to prevent the disclosure of individual names or
identifying information of third parties and thus avoiding the risks of negative stigma,
embarrassment, or harassment that can result from being publicly identified in [] records
pertaining to a serious criminal investigation.” Id. at 6–7. The ATF also clarifies that for most
redactions, it “simply redacted the names of third-party witnesses, potential witnesses, and
suspects,” and in particular, “[n]ames redacted from records include aliases or suspected aliases
and nicknames of witnesses, potential witnesses or suspects.” Id. at 7. Otherwise, “[i]n some
instances, dates of birth, phone numbers, residential addresses, and physical descriptions of
information . . . of non-law enforcement third parties are redacted,” as well as “[n]ames and
21
badge numbers of law enforcement officers, other than ATF Special Agents in Charge or
Assistant Special Agents in Charge.” Id.
Exemption 7(C) “affords broad[] privacy rights to suspects, witnesses, and investigators.”
SafeCard Servs., 926 F.2d at 1205 (quoting Bast v. DOJ, 665 F.2d 1251, 1254 (D.C. Cir. 1981)).
And the public interest in that information is “not just less substantial, it is insubstantial,” id.,unless there is “compelling evidence that the agency denying the FOIA request is engaged in
illegal activity” and “access to the names of private individuals appearing in the agency’s law
enforcement files” is necessary to confirm or refute that evidence, id. at 1205–06. Otherwise,
“there is no reason to believe that the incremental public interest in such information would ever
be significant,” and the information is categorically exempt from disclosure. Id. at 1206. Since
Kowal does not point to any illegal activity implicating the ATF’s redactions under Exemptions
6 and 7(C) of names, addresses, and other identifiers of suspects, witnesses, and investigators
mentioned in investigatory files, the Court cannot find fault with the balance struck by the ATF.
While Kowal does not rely on any overriding public interest mandating disclosure, she
argues that the ATF’s redactions were improper because of the public domain doctrine. She
argues that the ATF cannot rely on “‘the risks of negative stigma, embarrassment, or harassment
that can result from being publicly identified in records pertaining to a serious criminal
investigation’ . . . as the basis for withholding [because] those risks are profoundly diminished
when the individuals are public employees whose identities were already disclosed during the
public trial in this case.” Pl’s Br. at 30 (quoting Siple Decl. at 7).
To be sure, agencies “cannot rely on an otherwise valid exemption claim to justify
withholding information that has been ‘officially acknowledged’ or is in the ‘public domain.’”
Davis v. DOJ, 986 F.2d 1276, 1279 (D.C. Cir. 1992) (quoting Afshar v. Dep’t of State, 702 F.2d
221125, 1130–34 (D.C. Cir. 1983)). But “a plaintiff asserting a claim of prior disclosure must bear
the initial burden of pointing to specific information in the public domain that appears to
duplicate that being withheld,” id. (emphasis added) (quoting Afshar, 702 F.2d at 1130), to
ensure that “the information sought is truly public and that the requester receive no more than
what is publicly available,” Cottone v. Reno, 193 F.3d 550, 555 (D.C. Cir. 1999). “For the
public domain doctrine to apply, the specific information sought must have already been
‘disclosed and preserved in a permanent public record.’” Students Against Genocide, 257 F.3d at
836 (quoting Cottone, 193 F.3d at 554).
Kowal attaches long trial transcripts, with no pinpoint citations, to purportedly show that
the ATF has “continually invoke[d] exemptions relating to case agents, informants, and the like,
even though the agents and informants actually testified at the trial, placing the information in
the public domain.” Pl’s Br. at 31; see ECF Nos. 21-22 to 21-26. She argues that Troya was
“the subject of a high publicity trial that was tried over the course of months with high media
scrutiny,” where “case agents, informants, and other witnesses testified,” removing “any cloak of
privacy, confidentiality, and anonymity,” and she provides the names of a DEA agent and
confidential source who both testified at the trial. Pl’s Br. at 31. But Kowal has failed to meet
her burden. She does not identify the “specific” trial documents that are “identical” to those the
ATF is withholding, Davis, 986 F.2d at 1280, nor does she specify any information in the public
domain about this DEA agent and confidential source, beyond their names. See Bartko v. DOJ,
167 F. Supp. 3d 55, 72 (D.D.C. 2016) (“[A]side from the trial testimony he references, [the
plaintiff] has not even tried to explain how the balance of the materials he seeks is ‘public.’”);
Black v. DOJ, 69 F. Supp. 3d 26, 35 (D.D.C. 2014) (attaching court transcripts but failing “to
point to specific information identical to that being withheld that has been placed in the
23
permanent public record”). Further, “[e]ven if [Kowal] already knows the identities of trial
witnesses, the [ATF’s] decision to withhold their names and other identifying information under
Exemption 7(C) is justified” because “[a] witness does not waive his or her interest in personal
privacy by testifying at a public trial.” Sellers v. DOJ, 684 F. Supp. 2d 149, 159–60 (D.D.C.
2010); see also Lardner v. DOJ, No. 03-cv-0180 (JDB), 2005 WL 758267, at *19 (D.D.C. Mar.
31, 2005) (finding that the name of a witness who testified at a public trial was properly withheld
under Exemption 7(C)). Ultimately, Kowal has not shown that the material she seeks is in the
public domain, and since the ATF justified its reliance on Exemptions 6 and 7(C), it may
withhold that information. See Davis, 986 F.2d at 1280.
D. Segregability of the ATF’s Withheld Documents
Finally, Kowal argues that the ATF failed to show that no portion of the 30 documents it
withheld in their entirety under Exemptions 6 and 7(C) was reasonably segregable. Pl’s Br. at
32. Under FOIA, any “reasonably segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). The
agency is “entitled to a presumption that [it] complied with the obligation to disclose reasonably
segregable material.” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013) (alteration in original)
(quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007)). Defendants
must, however, identify the exempt material and “provide descriptions of excerpts deemed to be
non-segregable, with explanations as to these decisions.” Am. Immigr. Council v. DHS, 950
F. Supp. 2d 221, 248 (D.D.C. 2013).
The ATF’s declaration explains that it applied redactions to documents when it could do
so “in such a way as to carefully protect information that either by itself, or if read in
combination with other public information, could result in the disclosure of the identities of non-
law enforcement third parties contained within ATF investigation records,” and confirms that
24
“[a]ll meaningful segregable information has been disclosed to Plaintiff.” Siple Decl. at 8. As
explained above, the ATF provided five categories under which it withheld in their entirety 30
“sensitive law enforcement records relating to specific witnesses and suspects” for privacy
reasons:
(1) criminal court records of third parties, including sentencing reports, sentencing
records, judgments, and requests for certified court records for individuals other than
Daniel Troya; (2) Department of Motor Vehicle records, primarily title searches, run on
personal vehicles owned by individuals other than Daniel Troya; (3) finger print cards or
examinations for individuals other than Daniel Troya; (4) TECS queries and personal
criminal histories for individuals other than Daniel Troya; and (5) property forfeiture
records for property forfeited by individuals other than Daniel Troya.
Id. at 7. The ATF also provided descriptions for the documents it withheld in their entirety in its
Vaughn index. See ATF Index. The nature of these documents is consistent with ATF’s
assertion that it would be impossible to meaningfully redact them and still withhold private
information subject to Exemptions 6 and 7(C). And “access to the names and addresses of
private individuals appearing in files within the ambit of Exemption 7(C)” are categorically
exempt from disclosure. SafeCard Servs., 926 F.2d at 1206. The ATF has thus shown with
“reasonable specificity” as to why the 30 documents cannot be segregated. Johnson v. Exec. Off.
for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002).
Conclusion and Order
For all the above reasons, it is hereby ORDERED that as to Plaintiff’s claims against the
ATF and the adequacy of the search conducted by the FBI, Defendants’ Motion for Summary
Judgment, ECF No. 19, is GRANTED and Plaintiff’s Cross-Motion for Summary Judgment,
ECF No. 21, is DENIED. In all other respects, the Motions are DENIED WITHOUT
25
PREJUDICE. It is further ORDERED that the parties shall meet, confer, and submit a joint
schedule for briefing renewed motions for summary judgment by October 9, 2020.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: September 24, 2020
26