Abdeljabbar v. Bureau of Alcohol Tobacco and Firearms , 74 F. Supp. 3d 158 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________________
)
ZEYAD ABDELJABBAR, )
)
Plaintiff, )
)
v. ) Civil Action No. 1:13-cv-0330 (RBW)
)
BUREAU OF ALCOHOL, TOBACCO )
AND FIREARMS, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Zeyad Abdeljabbar, the pro se plaintiff in this civil matter, alleges that the defendants, the
Bureau of Alcohol, Tobacco, and Firearms (“ATF”), the Executive Office for United States
Attorneys (“EOUSA”), and the Federal Bureau of Investigation (“FBI”), violated the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552 (2012), by failing to respond adequately to FOIA
document requests submitted by the plaintiff. Complaint (“Compl.”) at 2-3, 5. Specifically, the
plaintiff requested from the defendants “any and all investigative documents in the files of [the
defendants], from the criminal case United States v. Zeyad Abdeljabbar, 4:07CR2114,
[prosecuted] in the Eastern District of Missouri,” as well as certain “information [from] the file
on the government testifying witness[es].” Id. The defendants have moved for summary
judgment, asserting that they “have already disclosed all non-exempt information to [the]
[p]laintiff.” Memorandum of Points and Authorities in Support of Defendants’ Motion for
Summary Judgment (“Defs.’ Mem.”) at 2. After carefully considering the Complaint, the
Defendants’ Motion for Summary Judgment (“Defs.’ Mot.”), and the memoranda of law
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submitted in support of the motion, the Court concludes for the reasons that follow that it must
grant the defendants’ motion.1
I. BACKGROUND
In compliance with the obligations set forth in Fox v. Strickland, 837 F.2d 507 (D.C. Cir.
1988), and Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992),2 the Court issued an order on January
23, 2014, advising the plaintiff of the potential consequences of failing to respond to the
defendants’ motion for summary judgment, and ordered the plaintiff to respond to the motion by
March 3, 2014. ECF No. 23. As of the date of this Memorandum Opinion, the plaintiff has not
responded to the defendants’ motion for summary judgment. Accordingly, the Court accepts as
true the factual assertions submitted in support of the defendants’ motion. See Neal, 963 F.2d at
456.
A. ATF Request No. 12-951
The plaintiff alleges that he submitted a FOIA request to the ATF on April 3, 2012,
demanding that he be provided “any and all investigative documents in the files of [the ATF],
from the criminal case United States v. Zeyad Abdeljabbar, 4:07CR2114, [prosecuted] in the
Eastern District of Missouri,” as well as certain “information [from] the file on the government
testifying witness[es].” Compl. at 2; Boucher Decl., Exhibit (“Ex.”) A at 1. On May 26, 2012,
the plaintiff lodged a FOIA appeal with the United States Department of Justice’s Office of
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The Court considered the following submissions in reaching its decision: (1) the Complaint (“Compl.”); (2) the
Defendants’ Motion for Summary Judgment (“Defs.’ Mot.”); (3) the Defendants’ Statement of Material Facts Not in
Genuine Dispute (“Defs.’ Statement”); (4) the Memorandum of Points and Authorities in Support of Defendants’
Motion for Summary Judgment (“Defs.’ Mem.”); (5) the Declaration of Stephanie M. Boucher, Chief, Disclosure
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (“Boucher Decl.”); (6) the Declaration of David
Luczynski (“Luczynski Decl.”); and (6) the Declaration of David M. Hardy (“Hardy Decl.”).
2
In Fox, this Circuit held that a Court must provide notice to parties appearing pro se that the failure of a party to
respond to a dispositive motion “may result in the district court granting the motion and dismissing the case.” 837
F.2d at 509. Further, in Neal, this Circuit held that a Court must inform pro se litigants that, on a motion for
summary judgment, “any factual assertions in the movant's affidavits will be accepted by the district judge as being
true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the
assertion.” 963 F.2d at 456 (internal quotation and citation omitted).
2
Information and Privacy (“OIP”), Defs.’ Statement ¶ 1, claiming that he “ha[d] not heard from
[the ATF]” and was “taking the non-response as a denial of [his] request,” Boucher Decl., Ex. A
at 1. Upon review, the ATF determined that it “had not received a FOIA request from [the
plaintiff].” See Defs.’ Statement ¶ 4. The ATF advised the plaintiff of this by letter dated June
18, 2012, and noted that the plaintiff “could resubmit a FOIA request to [the] ATF.” Id.
When the plaintiff filed his Complaint with the Court on February 13, 2013, the ATF
“treated that [C]omplaint as an initial FOIA request.” Id. ¶ 5. “By letter dated September 24,
2013, [the] ATF’s Disclosure Division granted [the] [p]laintiff’s request, in part.” Defs.’
Statement ¶ 6. “Portions of responsive records were withheld under Exemptions (b)(3),
(b)(7)(C)[,] and (b)(7)(E) of the FOIA,” id., the ATF having “reviewed each page of the material
identified as responsive to ensure that no additional information could be released . . . [and that]
[a]ll releasable information ha[d] been provided to [the plaintiff],” Boucher Decl. ¶ 42.
B. EOUSA Request Nos. 12-1412, 12-1414, and 12-3509
On April 3, 2012, the plaintiff submitted a FOIA request to the EOUSA, which was
largely identical in substance to the request he submitted to the ATF. Compl. at 3. By letter
dated May 2, 2012, the EOUSA “informed [the] plaintiff” that, with respect to his request for
records of third parties, “it is the policy of the EOUSA to neither confirm nor deny that records
concerning living third parties exist.” Defs.’ Statement ¶ 15. Following receipt of this letter, the
plaintiff “submitted a modified request for third parties . . . requesting only public records
relating to the third parties.” Luczynski Decl. ¶ 14.3
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Concurrently, the plaintiff also filed an appeal of this determination to the DOJ’s OIP. Defs.’ Statement ¶ 16. “By
letter dated September 17, 2012, [the] OIP informed [the] plaintiff that it ha[d] affirmed [the] EOUSA’s decision in
refusing to confirm or deny the existence of records responsive to his request and that, without consent, proof of
death, or an overriding public interest, confirming or denying the existence of such records would constitute an
unwarranted invasion of personal privacy.” Id. ¶ 18.
3
On April 29, 2013, the EOUSA granted the plaintiff’s modified request, in part, and
informed the plaintiff that “his request has been processed and that 58 pages had been released in
full (“RIF”), 141 pages had been released in part (“RIP”), and 197 pages of records had been
withheld in full (“WIF”).” Defs.’ Statement ¶ 14. The EOUSA noted in its letter that it withheld
certain information pursuant to FOIA Exemptions (b)(3), (b)(5), (b)(6), (b)(7)(C), (b)(7)(D).4 Id.
The EOUSA asserts in its declaration that “[a]ll information withheld was exempt from
disclosure pursuant to a FOIA exemption . . . [and] no reasonably segregable non-exempt
information was withheld from [the] plaintiff.” Luczynski Decl. ¶ 39.
C. FBI Request No. 1188333-000
On March 30, 2012, the plaintiff submitted a FOIA request to the FBI, which was also
largely identical in substance to the requests he submitted to the ATF and the EOUSA. Compl.
at 5. “By letter dated December 19, 2013, the FBI advised [the] [p]laintiff that it had reviewed
97 pages and it was releasing 59 pages[5] to him . . . [and that] it had withheld information
pursuant to . . . FOIA Exemptions (b)(1), (b)(6), (b)(7)(C), (b)(7)(D), and (b)(7)(E).” Defs.’
Statement ¶ 28. According to the FBI, “[n]o reasonably segregable, nonexempt portions were
4
Both the EOUSA and the FBI assert that had the plaintiff sought these records under the Privacy Act, 5 U.S.C. §
552a, withholding this information would also be appropriate pursuant to Exemption (j)(2) of that Act. See Defs.’
Statement ¶¶ 14, 28. The Court need not consider the applicability of the Privacy Act’s exemptions because the
plaintiff does not allege violations of that Act. Moreover, an agency may not rely exclusively “on any exemption in
[the Privacy Act] to withhold from an individual any record which is otherwise accessible to such individual under
the provisions of [the FOIA].” 5 U.S.C. § 552a(t)(2).
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The Court notes several inconsistencies in the FBI’s representations as to the number of pages reviewed, as well as
the number of pages released. While the letter to the plaintiff states that the FBI reviewed 96 pages and 58 were
released, Hardy Decl., Ex. G at 1, the Defendants’ Statement of Material Facts represents that the FBI reviewed 97
pages and released 59, Defs.’ Statement ¶ 28. Furthermore, the FBI acknowledges that “[u]pon coding the material,
it was found that 102 pages were actually reviewed.” Hardy Decl. ¶ 12 n.3. The Court reviewed the Bates stamped
documents that the FBI released to the plaintiff, included as Exhibit H to the Declaration of David M. Hardy, and
concludes that the FBI actually reviewed 102 pages, released 59 pages with redactions, and withheld in full 43
pages. See Hardy Decl., Ex. H. The FBI having provided the plaintiff with Bates stamped documents accounting
for all of the 102 pages it reviewed, the Court concludes that the inconsistency reflected in the FBI’s cover letter is
an unintentional clerical error that in no way has prejudiced the plaintiff.
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withheld from [the] plaintiff,” Hardy Decl. ¶ 24, and that “all material which the FBI has
withheld is exempt from disclosure pursuant to one or more FOIA exemptions,” id. ¶ 28.
I. STANDARD OF REVIEW
Courts will grant a motion for summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of
a genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and may do
so by “citing to particular parts of materials in the record, including . . . affidavits or
declarations,” Fed. R. Civ. P. 56(c)(1)(A). “[A] dispute about a material fact is ‘genuine’ . . . if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party” on an
element of the nonmoving party’s claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Factual assertions in the moving party’s affidavits or declarations may be accepted as
true unless the opposing party submits affidavits or declarations or documentary evidence to the
contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). In opposing a summary judgment
motion, a party may not “replace conclusory allegations of the complaint . . . with conclusory
allegations of an affidavit,” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990), but rather
must “set forth specific facts showing that there is a genuine issue for trial,” Liberty Lobby, 477
U.S. at 248 (internal quotations omitted).
Courts review an agency’s response to a FOIA request de novo, 5 U.S.C. § 552(a)(4)(B),
and “FOIA cases typically and appropriately are decided on motions for summary judgment,”
ViroPharma Inc. v. HHS, 839 F. Supp. 2d 184, 189 (D.D.C. 2012) (citations omitted). In a
FOIA action to compel production of agency records, the agency “is entitled to summary
judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls
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within the class requested either has been produced . . . or is wholly exempt from the [FOIA’s]
inspection requirements.’” Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 833
(D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).
Summary judgment in a FOIA case may be based solely on information provided in an
agency’s supporting affidavits or declarations if they are “relatively detailed and nonconclusory,”
Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotations and
citations omitted), and when they:
[d]escribe the documents and the justifications for nondisclosure with reasonably
specific detail, demonstrate that the information withheld logically falls within the
claimed exemption, and are not controverted by either contrary evidence in the
record [or] by evidence of agency bad faith.
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “To successfully challenge
an agency’s showing that it complied with the FOIA, the plaintiff must come forward with
‘specific facts’ demonstrating that there is a genuine issue with respect to whether the agency has
improperly withheld extant agency records.” Span v. U.S. Dep’t of Justice, 696 F. Supp. 2d 113,
119 (D.D.C. 2010) (quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).
II. ANALYSIS
In his Complaint, the plaintiff sets forth only generalized allegations, noting that the
defendants are in “violation of FOIA” by not releasing all responsive records. See Compl. at 3
(“[The ATF] is in gross violation of FOIA, by not respon[d]ing and releasing records and
information requested. There is no legal justification for the nonresponse of [the ATF].”); id. at
5 (“EOUSA is in violation of EOUSA [sic], by not adequately responding to [the] [p]laintiff’s
specific FOIA request for records on self, [t]hird [p]arties, as well as [t]hird [p]arties ‘Public
Records.’”); id. at 6 (“FBI is in gross violation of FOIA, by no [sic] provided [sic] the requested
records within its files, as mandated by Congress.”). To prevail on their summary judgment
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motion, the defendants “must show beyond material doubt that [they] ha[ve] conducted . . .
search[es] reasonably calculated to uncover all relevant documents,” Morley v. CIA, 508 F.3d
1108, 1114 (D.C. Cir. 2007), and that each document identified as responsive “has been
produced . . . or is wholly exempt from” disclosure, Students Against Genocide, 257 F.3d at 833.
For the reasons that follow, the Court finds that: (1) the defendants conducted reasonable and
adequate searches; and (2) the defendants withheld from disclosure only information for which a
FOIA exemption properly applies.
A. Adequacy of the Defendants’ Searches
The adequacy of an agency’s search is measured by a standard of reasonableness under
the attendant circumstances. Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990). To
satisfy its burden to show that no genuine issue of material fact exists, the defendant must show
that each agency component “has conducted a search reasonably calculated to uncover all
relevant documents,” Elliott v. U.S. Dep’t of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (quoting
Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)), and it may base its
showing on affidavits or declarations submitted in good faith, see Truitt, 897 F.2d at 542,
provided that these affidavits or declarations explain in reasonable detail the scope and method
of the search, see Morley, 508 F.3d at 1116 (citing Goland, 607 F.2d at 352). “In the absence of
contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s
compliance with [the] FOIA.” North v. U.S. Dep’t of Justice, 774 F. Supp. 2d 217, 222 (D.D.C.
2011) (citing Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982)). There is no requirement that
an agency search every record system in response to a FOIA request; rather, it may limit its
search to only those locations where responsive documents likely are maintained. Porter v. CIA,
778 F. Supp. 2d 60, 69–70 (D.D.C. 2011). However, if the record “leaves substantial doubt as to
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the sufficiency of the search, summary judgment for the agency is not proper.” Beltranena v.
Clinton, 770 F. Supp. 2d 175, 183 (D.D.C. 2011) (quoting Truitt, 897 F.2d at 542); see also
Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (stating that summary
judgment is inappropriate “if a review of the record raises substantial doubt” about the adequacy
of the search (citation omitted)).
1. The ATF’s Search
Stephanie Boucher, the Chief for ATF’s Disclosure Division, Boucher Decl. ¶ 2, asserts
in her declaration that the “ATF undertook a complete and thorough search for all documents
responsive to [the plaintiff’s] FOIA request. All indices and file systems . . . that would contain
information pertaining to [the plaintiff] were reasonably searched.” Id. ¶ 19. Specifically, she
represents that “[b]ased upon the information provided by [the plaintiff] in [his] FOIA request,”
the ATF “conducted a search of N-Force and located the investigation number relating to [the
plaintiff’s] [criminal] investigation.” Boucher Decl. ¶ 11. As she explains:
‘N-Force’ is a case management system designed to support ATF law
enforcement operations and acts as a single-point of data entry system, which
enables users to store, utilize, and query investigative information, and to prepare
investigative documents. N-Force is ATF’s official case file of record for
documenting investigative activity and information, creating reports, tracking
investigative leads and linking data.
Id. ¶ 12. The ATF’s “search indicated that [the plaintiff]’s case, Investigation Number 779050-
03-0135, was closed and [related documents] had been archived.” Id. ¶ 16. “Once the
documents were received from archives, the documents responsive to [the plaintiff]’s FOIA
request were forwarded via Federal Express to the Disclosure Division.” Id. Additionally, the
ATF conducted a search of the Treasury Enforcement Communications System (“TECS”) for
documents responsive to the plaintiff’s request. Id. ¶ 17. The ATF notes in its declaration that:
TECS is a text-based database, owned and maintained by the Bureau of Customs
and Border Protection, U.S. Department of Homeland Security, and contains
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information that may be of interest to law enforcement agencies. TECS is a
computerized information system designed to identify individuals and businesses
suspected of or involved in violation of Federal law. TECS is also a
communications system permitting message transmittal between Federal law
enforcement offices and other international, state, and local law enforcement
agencies.
Id. The field office responsible for investigating the plaintiff’s case also “conducted an
independent and thorough search for all materials responsive to [the] plaintiff’s FOIA request,”
id. ¶ 15, and forwarded the responsive documents to the ATF’s Disclosure Division, id. ¶ 16.
The ATF searched N-Force, its centralized case management system, TECs, an
interagency communications system, and the records of the field office responsible for
investigating the plaintiff’s case—methods which it contends were “reasonably expected to
produce the information requested.” Defs.’ Mem. at 6. Based upon these representations, the
ATF’s declaration sets forth sufficient factual detail of the methods it utilized in conducting its
search for documents responsive to the plaintiff’s request. See, e.g., McRae v. U.S. Dep’t of
Justice, 869 F. Supp. 2d 151, 160-62 (D.D.C. 2012) (finding adequate the ATF’s search of TECS
and N-Force in order to respond to the plaintiff’s FOIA request). The plaintiff offers no basis for
finding these search methods to be deficient. Accordingly, the Court concludes that ATF’s
search was adequate.
2. The EOUSA’s Search
Following receipt of the plaintiff’s FOIA request, the EOUSA “began a systematic search
for records on [the plaintiff], to determine the location of any and all files relating to him in order
to comply with the request.” Luczynski Decl. ¶ 17. The EOUSA “searched for records from the
case files in that case,” and “sent e-mails to the Assistant United States Attorney in the Criminal
Division to ascertain whether they had any responsive records.” Id. The EOUSA also queried
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the United States Attorney’s Offices’ “LIONS” system for responsive information. Id. The
EOUSA explains that:
The “LIONS” system is a computer system used by United States Attorney[’]s
[O]ffices to track cases and to retrieve files pertaining to cases and investigations.
By use of the “LIONS” system, the user can access databases which can be used
to retrieve the information based on a defendant’s name, the USAO number
(United States’ Attorney’s Office internal administrative number), and the district
court case number.
Id. The EOUSA asserts that “[e]ach United States Attorney’s Office maintains the case files for
criminal matters prosecuted by that office,” “[a]ll documents responsive to [the] plaintiff’s
request have been located in the United States Attorney[’]s Office for the Eastern District of
Missouri,” and “[t]here are no other records systems or locations within the Eastern District of
Missouri in which other files pertaining to [the] plaintiff’s criminal case, were maintained.” Id.
¶¶ 17-19.
The EOUSA’s declaration “sets forth in reasonable detail, the steps taken by [the
EOUSA] in finding records responsive to [the] [p]laintiff’s request.” Defs. Mem. at 12. Based
upon these methods, the defendants assert that the “EOUSA conducted a search that was
reasonably expected to uncover [responsive] documents.” Id. The plaintiff sets forth no
justification for the Court to find otherwise. Accordingly, the Court concludes that the EOUSA’s
search was adequate. See, e.g., Jones v. Exec. Office for the U.S. Attorneys, 959 F. Supp. 2d 52,
54-55 (D.D.C. 2013) (finding adequate the EOUSA’s search of LIONS and related case files in
order to respond to the plaintiff’s FOIA request).
3. The FBI’s Search
“In response to [the] plaintiff’s [FOIA] request, the FBI conducted a search of the
automated indices to the [Central Records System] in order to identify all potentially responsive
main files indexed to the name of [the plaintiff].” Hardy Decl. ¶ 19. Specifically, the FBI
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searched for the records “utilizing a six and three-way phonetic breakdown of his name,
including any variations of his first or last name that sound similar or are similar but spelled
differently,” also using the “[p]laintiff’s date of birth and social security number . . . to facilitate
the identification of responsive records.” Id. ¶ 19. As the FBI explains in its declaration:
The Central Records System (‘CRS’), which is utilized to conduct searches in
response to FOIA and Privacy Act requests, enables the FBI to maintain all
information which it has acquired in the course of fulfilling its mandated law
enforcement responsibilities. The records maintained in the CRS consist of
administrative, applicant, criminal, personnel, and other files compiled for law
enforcement purposes.
Id. ¶ 13. By letter dated April 26, 2012, the FBI advised the plaintiff that “it conducted a search
of its Central Records System and it was unable to identify any main investigative records
responsive to [the plaintiff’s] [FOIA] request.” Defs.’ Statement ¶ 24. The plaintiff appealed the
FBI’s response to the DOJ’s OIP, id. ¶ 25, which ultimately affirmed the FBI’s action, id. ¶ 27.
“Upon learning of this litigation, the FBI conducted another search to identify potentially
responsive cross-reference files.” Id. ¶ 28. “A cross-reference is defined as a mere mention of,
or passing reference to, other individuals, organizations, events, or activities.” Hardy Decl. ¶ 20.
The FBI did not search for cross-reference files during its initial search because “[i]t is the FBI’s
current policy to search for, identify and process only main files at the initial administrative state
of” requests submitted pursuant to the FOIA and the Privacy Act. See id. ¶ 19. Following this
search, “the FBI located several responsive cross-reference entries” at the FBI’s headquarters
and at several field office locations. Id. ¶ 20.
The FBI’s declaration sets forth sufficient factual detail of the methods it utilized in
conducting a search for documents responsive to the plaintiff’s request. See, e.g., Dent v. Exec.
Office for U.S. Attorneys, 926 F. Supp. 2d 257, 265-67 (finding adequate the FBI’s search of its
Central Records System, in response to the plaintiff’s FOIA request). The plaintiff has not
11
disputed the FBI’s assertion that it “performed a search using methods which can be reasonably
expected to produce the information requested.” Defs.’ Mem. at 21 (internal quotations and
citations omitted). Accordingly, the Court concludes that the FBI’s search was adequate.
B. The FOIA Exemptions Asserted by the Defendants6
1. Exemption (b)(1)
Pursuant to Exemption (b)(1), an agency may withhold documents “specifically
authorized under criteria established by an Executive order to be kept secret in the interest of
national defense or foreign policy and . . . are in fact properly classified pursuant to such
Executive order.” 5 U.S.C. § 552(b)(1). The Court must “accord substantial weight to an
agency’s affidavit concerning the details of the classified status of the disputed record because
the Executive departments responsible for national defense and foreign policy matters have
unique insights into what adverse affects [sic] might occur as a result of a particular classified
record.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003)
(internal quotations and citations omitted) (alteration in original).
The FBI invoked Exemption (b)(1) as the basis for withholding classified information
that “pertains to intelligence activities (including covert action), intelligence sources or methods,
or cryptology.” Hardy Decl. ¶ 33. Executive Order 13,526, “which governs the classification
and protection of information that affects the national security,” id. ¶ 30, specifically authorizes
agencies to classify this category of information, Exec. Order No. 13,526, § 1.4(c), 3 C.F.R. 298,
300 (2009). The Section Chief of the Record/Information Dissemination Section of the FBI
“independently examined the information withheld from [the] plaintiff pursuant to FOIA
6
To summarize, the ATF withheld portions of records pursuant to FOIA Exemptions (b)(3), (b)(7)(C), and
(b)(7)(E). Defs.’ Statement ¶ 6. The EOUSA withheld portions of records pursuant to FOIA Exemptions (b)(3),
(b)(5), (b)(6), (b)(7)(C), (b)(7)(D). Id. ¶ 14. The FBI withheld portions of records pursuant to FOIA Exemptions
(b)(1), (b)(6), (b)(7)(C), (b)(7)(D), and (b)(7)(E). Id. ¶ 28.
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Exemption [(b)(1)] . . . [and] determined that the classified information continues to warrant
classification . . . pursuant to [Executive Order 13526].” Hardy Decl. ¶ 33. This is because:
The disclosure of this information could reasonably be expected to cause serious
damage to the national security, as it would: (a) reveal the actual intelligence
activity or method utilized by the FBI against a specific target; (b) disclose the
intelligence-gathering capabilities of the method; and (c) provide an assessment of
the intelligence source penetration of a specific target during a specific period of
time.
Id. ¶ 38. The Section Chief is an “original classification authority” who examined the
information “in light of the body of information available to [him] concerning the national
defense and foreign relations of the United States.” Id. ¶¶ 39-40.
The FBI has offered sufficient factual detail for the Court to conclude that the category of
information withheld under this Exemption may be classified according to Executive Order
13526, and that the specific documents in question were properly classified pursuant to that
Order. The plaintiff has not offered a justification to find otherwise. Accordingly, the Court
concludes that the FBI properly withheld this information pursuant to Exemption (b)(1).7 See,
e.g., Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 166 (D.D.C. 2013) (“Although many
details of these two documents remain unknown, the [government]’s declaration plausibly
establishes that the withheld information relates to sensitive operations within the Intelligence
Community, the substance of which is properly classified in the interest of national security. That
is sufficient to grant summary judgment.”); DiBacco v. U.S. Dep’t of the Army, 983 F. Supp. 2d
44, 61 (D.D.C. 2013) (“[The government]’s unrebutted declaration establishes with a reasonable
level of specificity that the information at issue was properly classified . . . and thus was properly
7
The FBI also asserts that it withheld this information pursuant to Exemption (b)(3). The Court having concluded
that the FBI properly withheld this information pursuant to Exemption (b)(1), it need not also consider the
applicability of Exemption (b)(3). See Larson v. Dep’t of State, 565 F.3d 857, 862-63 (D.C. Cir. 2009) (“[A]gencies
may invoke the exemptions independently and courts may uphold agency action under one exemption without
considering the applicability of the other.” (citation omitted)).
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withheld under FOIA exemption (b)(1). Therefore, the agency is entitled to summary judgment
on this issue.”).
2. Exemption (b)(3)
Pursuant to Exemption (b)(3), an agency may withhold information “specifically
exempted from disclosure by statute,” 5 U.S.C. § 552(b)(3), so long as the statute:
(A)(i) requires [withholding] from the public in such a manner as to leave no
discretion on the issue; or (ii) establishes particular criteria for withholding or
refers to particular types of matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009,
specifically cites to this paragraph.
Id. To prevail on summary judgment, the agency “need only show that the statute claimed is one
of exemption as contemplated by Exemption [(b)(3)] and that the withheld material falls within
the statute.” Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009) (citation omitted).
a. The ATF’s Application of Exemption (b)(3)
Pursuant to Exemption (b)(3), and in conjunction with Federal Rule of Criminal
Procedure 6(e), the ATF withheld “[grand jury] subpoenas, documents obtained under grand jury
subpoenas, transcripts, and indictments.” Boucher Decl. ¶ 25. Rule 6(e) provides “broad”
secrecy to “matters occurring before the grand jury,” Fund for Constitutional Gov’t v. Nat’l
Archives & Records Serv., 656 F.2d 856, 869 (D.C. Cir. 1981), and Exemption (b)(3) “applies if
the disclosed material would tend to reveal some secret aspect of the grand jury’s investigation,
including the identities of witnesses or jurors, the substance of testimony, the strategy or
direction of the investigation, or the deliberations or questions of jurors,” Hodge v. FBI, 703 F.3d
575, 580 (D.C. Cir. 2013) (internal quotations and citations omitted). The plaintiff has not
challenged the FBI’s assertion of Exemption (b)(3) for grand jury-related documents, and the
14
Court finds that the ATF has offered sufficient factual detail to conclude that it properly withheld
this information under this exemption. See, e.g., id.
Pursuant to Exemption (b)(3), and in conjunction with the Consolidated and Further
Continuing Appropriations Act of 2012 (“Act of 2012”), Public Law 112-55, the ATF also
withheld “[t]race [i]nformation relating to a co-conspirator.” Boucher Decl. ¶ 26. Specifically,
the ATF withheld “portions . . . of a firearms Trace Report wholly derived from the contents of
the Firearms Trace System Database.” Id. ¶ 30. “Trace Reports are based and derived from
information required to be kept by a Federal Firearms Licensee (FFL) pursuant to 18 U.S.C. §
923(g),” id., which requires, in part, that “[e]ach licensed [firearms] importer, licensed [firearms]
manufacturer, and licensed [firearms] dealer shall maintain such records of importation,
production, shipment, receipt, sale, or other disposition of firearms at his place of business for
such period, and in such form, as the Attorney General may by regulations prescribe,” 18 U.S.C.
§ 923(g). The Act of 2012 restricts the ATF from disclosing this information, by requiring:
That, during the current fiscal year and in each fiscal year thereafter, no funds
appropriated under this or any other Act may be used to disclose part or all of the
contents of the Firearms Trace System database maintained by the National Trace
Center of the Bureau of Alcohol, Tobacco, Firearms and Explosives or any
information required to be kept by licensees pursuant to section 923(g) of title 18,
United States Code, or required to be reported pursuant to paragraphs (3) and (7)
of such section, except to: (1) a Federal, State, local, or tribal law enforcement
agency, or a Federal, State, or local prosecutor; or (2) a foreign law enforcement
agency solely in connection with or for use in a criminal investigation or
prosecution; or (3) a Federal agency for a national security or intelligence
purpose; unless such disclosure of such data to any of the entities described in (1),
(2) or (3) of this proviso would compromise the identity of any undercover law
enforcement officer or confidential informant, or interfere with any case under
investigation; and no person or entity described in (1), (2) or (3) shall knowingly
and publicly disclose such data; and all such data shall be immune from legal
process, shall not be subject to subpoena or other discovery, shall be inadmissible
in evidence, and shall not be used, relied on, or disclosed in any manner, nor shall
testimony or other evidence be permitted based on the data, in a civil action in any
State (including the District of Columbia) or Federal court or in an administrative
proceeding other than a proceeding commenced by the Bureau of Alcohol,
15
Tobacco, Firearms and Explosives to enforce the provisions of chapter 44 of such
title, or a review of such an action or proceeding . . . .
Consolidated and Further Continuing Appropriations Act of 2012, Pub. L. No. 112-55, 125 Stat.
552, 609-10. Based upon this statutory language, the ATF asserts that it properly withheld the
trace information concerning a co-conspirator pursuant to Exemption (b)(3) because it “can only
provide trace data to a law enforcement agency or a prosecutor solely in connection with a bona
fide criminal investigation or prosecution, and then only such information as pertains to their
geographic jurisdiction.” Boucher Decl. ¶¶ 27-30.
Iterations of the Act of 2012’s language quoted above have appeared in each of the
consolidated appropriations acts of Congress since at least 2005. See, e.g., Consolidated
Appropriations Act, 2010, Pub. L. No. 111-117, 123 Stat. 3034, 3128-29; Consolidated
Appropriations Act, 2008, Pub. L. No. 110-161, 121 Stat. 1844, 1903-904; Consolidated
Appropriations Act, 2005, Pub. L. No. 108-447, 118 Stat. 2809, 2859-60. And based on this
particular language, read in conjunction with Exemption (b)(3), other members of this Court
have held consistently, until recently, that the ATF may withhold trace information derived from
the Firearms Trace System Database. See Higgins v. U.S. Dep’t of Justice, 919 F. Supp. 2d 131,
145 (D.D.C. 2013) (finding the withholding of trace information pursuant to Exemption (b)(3)
proper because “[t]he appropriations legislation on which [the ATF] relies explicitly bars
disclosure of information maintained by the National Trace Center . . . or any information
required to be kept by licensees pursuant to [18 U.S.C. § ] 923(g)” (internal quotation omitted));
McRae, 869 F. Supp. 2d at 163 (“Congress has expressly prohibited ATF from releasing such
documents to the public.”); Singh v. FBI, 574 F. Supp. 2d 32, 45–46 (D.D.C. 2008) (agency
properly withheld firearms transaction records); Miller v. U.S. Dep’t of Justice, 562 F. Supp. 2d
82, 111–12 (D.D.C. 2008) (agency properly withheld firearms trace reports); Watkins v. Bureau
16
of Alcohol, Tobacco & Explosives, No. 04–800, 2005 WL 2334277, at *1 (D.D.C. Sept. 1, 2005)
(concluding that the 2005 appropriations legislation “prevent[s] the public release of sensitive
firearms trace data not so much for budgetary reasons than out of concern that such disclosures
could jeopardize criminal investigations”).
In September of this year, however, another member of the Court declined to follow this
otherwise consistent reasoning, finding that the appropriations language in question no longer
satisfies Exemption (b)(3)’s requirements. See Fowlkes v. ATF, __ F. Supp. 3d __, __, No. 13-
0122, 2014 WL 4536909, at *6-7 (D.D.C. Sept. 15, 2014). Specifically, Fowlkes drew attention
to the OPEN FOIA Act of 2009, which amended Exemption (b)(3) and provides that any statute
“enacted after the date of enactment of the OPEN FOIA Act of 2009” must “specifically cite to
this paragraph” for an agency to rely on it to withhold information under Exemption (b)(3). Pub.
L. No. 111-83, 123 Stat. 2142 (2009) (codified as amended at 5 U.S.C. § 552(b)(3)). In other
words, the Court in Fowlkes found that the statutory disclosure prohibitions enacted after
October 8, 2009, must specifically reference Exemption (b)(3) if the prohibition is intended to
limit FOIA disclosures. See id. Relying exclusively on a decision from the Eastern District of
Michigan, Fowlkes concluded that, because “ATF’s declarant d[id] not state that the
Consolidated Appropriations Act of 2012 specifically refers to [Exemption (b)(3)] . . . [,] the
ATF d[id] not demonstrate that Exemption [(b)(3)] applies.” Fowlkes, __ F. Supp. 3d at __,
2014 WL 4536909, at *6-7 (citing Smith v. ATF, No. 13-13079, 2014 WL 3565634, at *5 n.2
(E.D. Mich. July 18, 2014)). To support this proposition, Fowlkes cites a portion of the Smith
decision wherein a judge of the Eastern District of Michigan noted that “the Consolidated
Appropriations Act of 2010 does not appear to satisfy [the OPEN FOIA Act of 2009 amendment
to] Exemption [(b)(3)].” Smith, 2014 WL 3565634, at *5 n.2. What Fowlkes omits from its
17
analysis, however, is that the Court in Smith ultimately concluded that this issue did not “need
[to] be addressed . . . as the Consolidated Appropriations Act of 2008 does satisfy that subsection
and . . . provides a permanent prohibition against disclosure that is not limited to the fiscal year
of the appropriated funds granted therein.” Id. (emphasis added). The Court in Smith
explained:
Congress could not have been more specific about what types of records should
be withheld. The [Consolidated Appropriations Act of 2008] obviously states the
criteria for withholding records, satisfying Exemption [(b)(3)] . . . . [T]he
application of the Act to Exemption [(b)(3)] is reasonable and consistent with the
applicable law because the Act is a permanent law that does not merely apply to a
single fiscal year. Although it is an appropriations bill for the fiscal year of 2008,
the pertinent paragraph begins by stating “[t]hat, beginning in fiscal year 2008
and thereafter, no funds appropriated under this or any other Act may be used to
disclose part or all of the contents of the Firearms Trace System database.” The
Act’s prohibition on disclosure continues beyond fiscal year 2008 (“and
thereafter”), and it also extends to all other laws (“any other Act”). The
prohibition on the expenditure of appropriated funds to disclose records from the
Firearms Trace System, therefore, extends laterally to other existing laws, but also
prospectively and beyond fiscal year 2008.
Id. at *6 (internal quotations, citations, and footnotes omitted). Thus, it appears that Smith’s
holding supports a position contrary to the proposition for which it is cited in Fowlkes.
For the reasons articulated in Smith, the Court finds that the disclosure prohibitions set
forth by Congress in the 2005 and 2008 appropriations bills are still effective prospectively and
beyond those fiscal years as a permanent prohibition, until such time as Congress expresses the
intent to repeal or modify them. Thus, the only remaining question is whether the successive
appropriations bills effectively repealed the language found in the 2005 and 2008 Acts.
“[R]epeals by implication are not favored, . . . and will not be found unless an intent to repeal is
clear and manifest.” Rodriguez v. United States, 480 U.S. 522, 524 (1987) (citations omitted).
Thus, “a later statute will not be held to have implicitly repealed an earlier one unless there is a
clear repugnancy between the two.” United States v. Fausto, 484 U.S. 439, 453 (1988) (citation
18
omitted). Congress’s decision to incorporate similar language into appropriations bills after
2009 demonstrates its intent to continue the disclosure prohibition; to find otherwise would
require this Court to reach the implausible conclusion that Congress intended to repeal by
implication a disclosure prohibition, at least with respect to FOIA, by reiterating that very
prohibition in subsequent legislation. And such a conclusion would contravene the strong
presumption “that Congress will specifically address language on the statute books that it wishes
to change.” See id.
Moreover, the Supreme Court has long-held that “[t]he normal rule of statutory
construction is that if Congress intends for legislation to change the interpretation of a judicially
created concept, it makes that intent specific.” Midlantic Nat’l Bank v. N.J. Dep’t of Envt’l
Protection, 474 U.S. 494, 501 (1986) (quoting Edmonds v. Compagnie Generale Transatlantique,
443 U.S. 256, 266-67 (1979)). Given the plethora of decisions from this Court holding that the
appropriations language in question is an appropriate statutory predicate for withholding
information pursuant to Exemption (b)(3), Congress’s uninterrupted use of this language in
appropriations bills after 2009 supports the conclusion that Congress did not intend for the
judiciary to depart from this long-standing position.
Other district courts that have addressed this issue since the enactment of the OPEN
FOIA Act of 2009 have not held to the contrary. See Caruso v. ATF, No. 10-6206, 2011 WL
669132, at *3 n.1 (D. Oregon Feb. 16, 2011) (raising the possibility that the OPEN FOIA Act of
2009 may have negated the applicability of this exemption to trace information, but declining to
find the exemption applicable on other grounds), rev’d on other grounds 495 Fed. App’x 776
(9th Cir. 2012) (“[T]he information [the plaintiff] seeks squarely falls under the statutory
language of the Appropriations Act and within the scope of Exemption [(b)(3)].”); Penn v. U.S.
19
Dep’t of Justice, No. S-10-2494, 2012 WL 761741, at *6 n.3 (E.D. Cal. Mar. 7, 2012)
(“Although it does not appear that the 2010 appropriations bill cites to § 552(b)(3), and although
it appears to have been enacted in October 2009, because the 2005 and 2008 appropriations bills
also apply here, and were enacted prior to the OPEN FOIA Act of 2009, that issue need not be
addressed.”), report and recommendation adopted, 2012 WL 1131537 (E.D. Cal. Mar. 28, 2012).
For the foregoing reasons, the Court concludes that the 2005 and 2008 appropriations
language continues to satisfy the requirements of FOIA’s Exemption (b)(3), and may be invoked
by the ATF to withhold the trace information.8 The plaintiff offers no justification for this Court
to find otherwise. Accordingly, the Court concludes that the ATF properly withheld the
information pursuant to Exemption (b)(3).
b. The EOUSA’s Application of Exemption (b)(3)
Pursuant to Exemption (b)(3), the EOUSA withheld grand jury information from its
response to the plaintiff’s FOIA request, including “grand jury transcripts . . . , information that
would reveal the identities of witnesses or jurors, the substance of the testimony given before the
grand jury, the strategy or direction of the investigation, the deliberations or questions of the
grand jurors, and any other matter, the disclosure of which would suggest a specific act, thought,
or focus of the grand jury’s deliberations.” Luczynski Decl. ¶¶ 22-23. As previously noted,
Exemption (b)(3) “applies if the disclosed material would tend to reveal some secret aspect of
the grand jury’s investigation, including the identities of witnesses or jurors, the substance of
testimony, the strategy or direction of the investigation, or the deliberations or questions of
jurors.” Hodge, 703 F.3d at 580 (internal quotations and citations omitted). The plaintiff has not
offered a reason to find that the EOUSA’s direct application of Exemption (b)(3) to this grand
8
While the ATF relies primarily on the 2012 appropriations language in its declaration, it does not do so
exclusively, as it refers to similar language found in prior appropriations bills. See Boucher Decl. ¶¶ 27-30.
20
jury-related information is improper. Accordingly, the Court concludes that the ATF properly
withheld the grand jury related material under this Exemption.
3. Exemption (b)(5)
Pursuant to Exemption (b)(5), an agency may withhold from FOIA disclosure “inter-
agency or intra-agency memorandums or letters which would not be available by law to a party
other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The Exemption
covers “those documents, and only those documents, normally privileged in the civil discovery
context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). “[T]he needs of a
particular plaintiff are irrelevant to a court’s determination of whether a particular
communication is exempt from disclosure under (b)(5).” Am. Immigration Council v. U.S.
Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 237-38 (D.D.C. 2013) (citing Martin v. Office of
Special Counsel, Merit Sys. Prot. Bd., 819 F.2d 1181, 1184 (D.C. Cir. 1987)).
Relying on Exemption (b)(5), the EOUSA withheld information subject “to the attorney
work product and deliberative process privilege.” Luczynski Decl. ¶¶ 24-25. Specifically, the
EOUSA withheld “trial preparation, trial strategy, interpretations, and personal evaluations and
opinions pertinent to [the] plaintiff’s criminal case,” id. ¶ 26, as well as “drafts of an indictment,
emails between attorneys, drafts of a prosecutorial memorandum, and all handwritten pages . . .
written by attorneys preparing the case,” id. ¶ 28. An attorney’s “documents and tangible things
that are prepared in anticipation of litigation or for trial” are ordinarily protected under the
attorney work-product privilege. Fed. R. Civ. P. 26(b)(3)(A). The application of this privilege
requires the Court to consider “whether, in light of the nature of the document and the factual
situation in the particular case, the document can fairly be said to have been prepared or obtained
21
because of the prospect of litigation.” In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998)
(internal quotation and citation omitted).
In light of the EOUSA’s representations that these “records were prepared by or at the
request or direction of an attorney, and made in anticipation of or during litigation,” Luczynski
Decl. ¶ 26, the documents in question fall within the attorney-work product privilege and are
exempt from disclosure. See, e.g., Sears, 421 U.S. at 154 (“It is . . . clear that Congress had the
attorney's work-product privilege specifically in mind when it adopted Exemption 5 . . . [and] the
rule clearly applies to memoranda prepared by an attorney in contemplation of litigation . . . .”
(citations omitted)). The plaintiff has not offered justification for this Court to find the
application of this Exemption improper. Accordingly, the Court concludes that the EOUSA
properly asserted Exemption (b)(5) for withholding this information.
4. Exemption (b)(7)
Pursuant to Exemption (b)(7), and as relevant to the defendants’ pending motion for
summary judgment, an agency may withhold:
[R]ecords or information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or information . . . (C)
could reasonably be expected to constitute an unwarranted invasion of personal
privacy, . . . [or] (E) would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law.
5 U.S.C. § 552(b)(7).
a. Exemption (b)(7)’s Threshold Law Enforcement Requirement
“To show that . . . documents were compiled for law enforcement purposes, the [agency]
need only establish a rational nexus between the investigation and one of the agency's law
enforcement duties and a connection between an individual or incident and a possible security
risk or violation of federal law.” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (internal
22
quotations and citations omitted). Based upon the representations submitted in each of the
defendants’ affidavits, the records withheld by the defendants pursuant to Exemption (b)(7) meet
this threshold requirement.
The ATF is “a criminal and regulatory enforcement agency within the Department of
Justice responsible for, among other things, enforcing Federal firearms laws including the Gun
Control Act of 1968, 18 U.S.C. [Sections] 921-930, the Federal explosives laws, 18 U.S.C.
Chapter 40, and the National Firearms Act, 26 U.S.C. Chapter 53.” Boucher Decl. ¶ 31. As the
ATF notes in its declaration, the responsive records withheld under Exemption (b)(7) “were
obtained by [the] ATF during an investigation [that] resulted in [the plaintiff’s] eventual
conviction of arson for profit” and thus were “compiled during the course of a valid law
enforcement investigation.” Id. ¶ 32. Thus, the ATF has sufficiently demonstrated a rational
nexus between its investigation of the plaintiff and the documents it has withheld under
Exemption (b)(7). See, e.g., Roberts v. FBI, 845 F. Supp. 2d 96, 103 (D.D.C. 2012) (“It is
apparent from the nature of plaintiff's FOIA request that the information he seeks was compiled
for law enforcement purposes, namely, the criminal prosecution of [the] plaintiff. Thus, the
[agency] meets its initial burden of establishing that the records at issue are law enforcement
records for purposes of Exemption 7.”). See also Blackwell, 646 F.3d at 40 (“[I]t is especially
convincing [that the requested information was compiled for law enforcement purposes] in this
case because [the plaintiff] explicitly sought records related to his own criminal prosecution.”).
Similarly, the FBI asserts that it is:
[T]he primary investigative agency of the federal government with authority and
responsibility to investigate all violations of federal law not exclusively assigned
to another agency, to conduct investigations and activities to protect the United
States and its people from terrorism and threats to national security, and further
the foreign intelligence objectives of the United States. Under this investigative
authority, the responsive records herein were compiled as result of the FBI’s
23
investigation related to national security and the FBI’s assistance to other law
enforcement entities . . . As relevant here, the FBI assisted other federal agencies
as well as a local law enforcement agency in its criminal investigations into
potential criminal activities concerning public corruption, murder, interstate
transportation in aid of racketeering, and arson. Thus, these records were
compiled for a law enforcement purpose; they squarely fall within the law
enforcement duties of the FBI.
Hardy Decl. ¶ 46. Based upon these representations, and the fact that the plaintiff seeks “records
related to his own criminal prosecution,” the FBI has also demonstrated a “rational nexus” that
satisfies Exemption (b)(7)’s threshold requirement. See, e.g., Blackwell, 646 F.3d at 40;
Roberts, 845 F. Supp. 2d at 103.
The EOUSA, a component of the DOJ responsible for responding to the FOIA request
submitted to the entity that prosecuted the matter referenced by the plaintiff in his FOIA request,
see Luczynsky Decl. ¶ 17, represents that the information it withheld pursuant to Exemption
(b)(7) “was necessarily compiled for law enforcement purposes,” Defs.’ Mem. at 16. In light of
the substance of the plaintiff’s FOIA request, demanding “all investigative material” regarding
his prosecution, Luczynski Decl. ¶ 6, the Court finds that the EOUSA has demonstrated a
“rational nexus” between the plaintiff’s criminal investigation and the documents withheld. See,
e.g., Blackwell, 646 F.3d at 40; Roberts, 845 F. Supp. 2d at 103.
b. Exemption (b)(7)(C)
Exemption (b)(7)(C) protects from disclosure information in law enforcement records
that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C). “In deciding whether the release of particular information constitutes an
unwarranted invasion of privacy under Exemption [(b)(7)(C)], [the Court] must balance the
public interest in disclosure against the [privacy] interest Congress intended the Exemption to
protect.” ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011) (internal quotations and
citation omitted). The privacy interest at stake belongs to the individual, not the government
24
agency, see U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749,
763–65 (1989), and “individuals have a strong interest in [avoiding unwarranted association]
with alleged criminal activity,” Stern v. FBI, 737 F.2d 84, 91–92 (D.C. Cir. 1984). When
balancing the private interest against the public interest in disclosure, “the only public interest
relevant for purposes of Exemption [(b)(7)(C)] is one that focuses on ‘the citizens’ right to be
informed about what their government is up to.’” Davis v. U.S. Dep’t of Justice, 968 F.2d 1276,
1282 (D.C. Cir. 1992) (quoting Reporters Comm., 489 U.S. at 773). “As a general rule, third-
party identifying information contained in [law enforcement] records is ‘categorically exempt’
from disclosure.” Lazaridis v. U.S. Dep’t of State, 934 F. Supp. 2d 21, 38 (D.D.C. 2013)
(quoting Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir.
1995)).
i. The ATF’s Application of Exemption (b)(7)(C)
“Pursuant to Exemption (b)(7)(C), the [ATF] withheld information relating to: (a) ATF
support staff, (b) ATF Special Agents, (c) Assistant United States Attorneys (AUSA) involved in
[the plaintiff’s] prosecution, (d) non-law enforcement third parties, (e) state and local law
enforcement personnel[,] and (f) co-defendants.” Boucher Decl. ¶ 35. The “ATF asserted
Exemption (b)(7)(C) to protect the identities of ATF Special Agents and local and state law
enforcement personnel, who are involved in law enforcement operations . . . because disclosure
might seriously prejudice their effectiveness in conducting investigations to which they are
assigned and subject them to unwarranted harassment.” Id. ¶ 37. Similarly, with respect to the
“names and identifying information of third parties, including Assistant United States Attorneys,
ATF support personnel, non-law enforcement third parties and co-defendants,” the ATF
concluded that this “information contained within its files must be withheld, because disclosure
25
of the information could reasonably be expected to cause the third parties referenced in its files
and third party witnesses embarrassment, harassment, and harm, and would do little, if anything
at all, to aid the public’s understanding of ATF.” Id. ¶ 39.
The Court agrees with the ATF’s conclusion that disclosure of this information regarding
its personnel may hinder the ATF’s ability to conduct ongoing investigations, may lead to
unwarranted harassment, and may otherwise cause embarrassment and be an invasion of privacy
as contemplated by the Exemption. See, e.g., Banks v. U.S. Dep’t of Justice, 813 F. Supp. 2d
132, 144 (D.D.C. 2011) (“Public identification of [law enforcement personnel] could
conceivably subject them to harassment and annoyance in the conduct of their official duties and
in their private lives” (internal quotation omitted)). These concerns significantly outweigh what
little benefit the public may gain with this information as to its understanding of the ATF’s
operations. See, e.g. Schoenman v. FBI, 763 F. Supp. 2d 173, 198 (D.D.C.2011) (finding
appropriate the withholding of information about FBI agents and support personnel, non-FBI
federal government personnel, local and foreign law enforcement personnel, third parties of
investigative interest, third parties who provided information to the FBI and third parties
incidentally mentioned in FBI records); Voinche v. FBI, 412 F. Supp. 2d 60, 67-68 (D.D.C.
2006) (“the privacy interests of the individuals whose information was withheld by the FBI
clearly outweigh the narrowly construed public interest in disclosure.”). The plaintiff has not
otherwise challenged the ATF’s assertion of Exemption (b)(7)(C), and the Court concludes that
the ATF properly withheld this information.
ii. The EOUSA’s Application of Exemption (b)(7)(C)
The EOUSA withheld, pursuant to Exemption (b)(7)(C), records pertaining to third party
individuals, including “potential witnesses and law enforcement personnel, the release of which
26
could subject such persons to an unwarranted invasion of their personal privacy.” Luczynsky
Decl. ¶ 33. Specifically, the EOUSA asserts that “[r]elease of such personal identifiers could
result in unwanted efforts to gain further access to such persons or to personal information about
them – or subject them to harassment, harm, or exposure to unwanted and/or derogatory
publicity and inferences – all to their detriment.” Id. The EOUSA also determined that “there is
no countervailing public interest in the release of this privacy-protected information, because its
dissemination would not help explain government activities and operations.” Id. ¶ 34. The
plaintiff has not offered justification to find that the EOUSA’s withholding of this information
was improper. Accordingly, the Court concludes that the EOUSA properly asserted Exemption
(b)(7)(C) for this information.9 See, e.g., Voinche v. FBI, 412 F. Supp. 2d at 67-68; Schoenman,
763 F. Supp. 2d at 198; Banks, 813 F. Supp. 2d at 144.
iii. The FBI’s Application of Exemption (b)(7)(C)
Pursuant to Exemption b(7)(C), the FBI withheld “the names and/or identifying
information of FBI Special Agents . . . and FBI support personnel, as well as personnel from
other Federal Law Enforcement Agencies,” Hardy Decl. ¶ 50, “the names and/or identifying
information concerning third parties who provided information to the FBI,” id. ¶ 53, “the names
and identifying information of third parties in [the responsive documents] who are of
investigative interest to the FBI and/or other law enforcement agencies,” id. ¶ 54, and “the names
and/or identifying information concerning third parties merely mentioned in [responsive]
records,” id. ¶ 55.
9
In addition to Exemption (b)(7)(C), the EOUSA also relied upon Exemption (b)(6) to withhold this information.
Luczynksy Decl. ¶¶ 29-31. The Court having concluded that the EOUSA properly withheld this information
pursuant to Exemption (b)(7)(C), it need not consider the applicability of Exemption (b)(6). See Larson, 565 F.3d at
862-63 (“[A]gencies may invoke the exemptions independently and courts may uphold agency action under one
exemption without considering the applicability of the other.” (citation omitted)).
27
The FBI determined that “[t]he publicity associated with the release of an employee’s
identity in connection with a particular investigation could trigger hostility toward him/her.” Id.
¶ 51. “In contrast, the FBI could identify no discernible public interest in the disclosure of the
names of these employees because their names and identifying information would not shed light
on the operations and activities of the FBI.” Id. Similarly, the FBI withheld the names and
identifying information of third parties because “they could be harassed, intimidated, or
threatened with legal consequences, economic reprisal, or possible physical harm,” and
disclosure “would shed no light on the operations and activities of the FBI.” Id. ¶ 53; see also id.
¶¶ 54-55. Thus, the FBI determined that “the personal privacy interests in non-disclosure
outweighed the public [interest] in disclosure.” Id. ¶ 55. The plaintiff does not offer justification
to find otherwise. Accordingly, the Court concludes that the FBI properly asserted Exemption
(b)(7)(C) to withhold this information.10 See, e.g., Voinche v. FBI, 412 F. Supp. 2d at 67-68;
Schoenman, 763 F. Supp. 2d at 198; Banks, 813 F. Supp. 2d at 144.
c. Exemption (b)(7)(D)
Exemption (b)(7)(D) protects from disclosure information in law enforcement records
that “could reasonably be expected to disclose the identity of a confidential source . . . [and]
information furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D). “A source is
confidential within the meaning of [Exemption (b)(7)(D)] if the source provided information
under an express assurance of confidentiality or in circumstances from which such an assurance
could be reasonably inferred.” Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (citation
omitted).
10
In addition to Exemption (b)(7)(C), the FBI also relied upon Exemption (b)(6) to withhold this information.
Because the Court has concluded that the FBI properly withheld this information pursuant to Exemption (b)(7)(C), it
need not consider the applicability of Exemption (b)(6). See Larson, 565 F.3d at 862-63 (“[A]gencies may invoke
the exemptions independently and courts may uphold agency action under one exemption without considering the
applicability of the other.” (citation omitted)).
28
i. The EOUSA’s Application of Exemption (b)(7)(D)
Relying on Exemption (b)(7)(D), the EOUSA withheld records “contain[ing] information
concerning the identities of individuals and material that the individuals provided in connection
with the investigation of [the] plaintiff for violation of the federal criminal laws.” Luczynski
Decl. ¶ 38. According to the EOUSA,“if this information were released, individual informants
would likely become targets of harassment or other forms of reprisal.” Id. ¶ 36. Based upon this
assessment, the EOUSA asserts in its declaration that the withheld records included “information
that was provided with an express assurance of confidentiality, as well as information from
which the assurance of confidentiality could be reasonably inferred.” Id. ¶ 38. As the plaintiff
does not offer justification to find otherwise, the Court concludes that the EOUSA properly
asserted Exemption (b)(7)(D) for this information. See, e.g., Santos v. DEA, No. 02-734, 2005
WL 555410, at *4 (D.D.C. Mar. 7, 2005) (“The Court finds that the DEA has properly invoked
exemption (b)(7)(D) because the exemption permits the DEA to protect valuable data provided
by informants who would be less likely to cooperate without the assurance of confidentiality.”);
Brunetti v. FBI, 357 F. Supp. 2d 97, 108 (D.D.C. 2004) (“This exemption provides for protection
of all information provided by a confidential source if there has been an explicit assurance of
confidentiality or circumstances existed which would have implied an understanding of
confidentiality.” (citation omitted)).
ii. The FBI’s Application of Exemption (b)(7)(D)
Pursuant to Exemption (b)(7)(D), the FBI withheld “the names, identifying information,
and/or information provided by third parties under an implied assurance of confidentiality.”
Hardy Decl. ¶ 58. The FBI represents that “[t]hese individuals provided information of value to
the FBI, and in doing so, placed themselves in harm’s way[] should the public become aware of
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their cooperation” and thus contends that “it may be inferred that these individuals have a
reasonable expectation that their identities and the information they provided would not be
released to the general public.” Id. ¶ 59. The FBI asserts that it “released as much segregable
information as possible without disclosing the sources’ identities.” Id. As the plaintiff offers no
justification to find otherwise, the Court concludes that the FBI properly asserted Exemption
(b)(7)(D) to withhold this information.11 See, e.g., Santos, 2005 WL 555410, at *4; Brunetti,
357 F. Supp. 2d at 108; see also Mays v. DEA, 234 F.3d 1324, 1328 (D.C. Cir. 2000) (noting
that Exemption (b)(7)(D) applies to information derived from sources who were “granted
confidentiality, either expressly or by implication”).
d. Exemption (b)(7)(E)
Exemption (b)(7)(E) protects from disclosure information in law enforcement records
that “would disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if
such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. §
552(b)(7)(E). “Exemption [(b)(7)(E)] sets a relatively low bar for the agency to justify
withholding: [r]ather than requiring a highly specific burden of showing how the law will be
circumvented, exemption [(b)(7)(E)] only requires that the [agency] demonstrate logically how
the release of the requested information might create a risk of circumvention of the law.”
Blackwell, 646 F.3d at 42 (alteration in original) (internal quotation marks omitted).
11
In addition to Exemption (b)(7)(D), the FBI also relied at times upon Exemptions (b)(6) and (b)(7)(C) to withhold
this information. Hardy Decl. ¶ 58. Because the Court concludes that the FBI properly withheld this information
pursuant to Exemption (b)(7)(D), it need not consider the applicability of Exemptions (b)(6) and (b)(7)(C). See
Larson, 565 F.3d at 862-63 (“[A]gencies may invoke the exemptions independently and courts may uphold agency
action under one exemption without considering the applicability of the other.” (citation omitted)).
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i. The ATF’s Application of Exemption (b)(7)(E)
The ATF invoked “Exemption (b)(7)(E) to withhold the information related to
operational plans used to plan and implement the arrests of all of the members of the arson for
profit scheme and TECS and NCIC computer file numbers.” Boucher Decl. ¶ 41. The ATF
contends that disclosure of operational plans would permit individuals to circumvent the law
because they “outline how law enforcement plans on conducting a law enforcement action . . .
[and] include contingency plans.” Id. The ATF represents that computer file numbers were
withheld because “[d]isclosure of such numbers and codes could allow individuals outside the
agency to circumvent agency functions and gain access to sensitive investigative information . . .
[,] or permit an individual to alter or create false records.” Id. According to the ATF, “[s]uch
access could result in the circumvention of ATF’s law enforcement duties.” Id. As the plaintiff
has not offered justification to find otherwise, the Court concludes that the ATF properly
withheld pursuant to Exemption (b)(7)(E) the operational plans regarding the plaintiff’s arrest.
See, e.g., Labow v. U.S. Dep’t of Justice, __ F. Supp. 2d __, __, No. 11-1256, 2014 WL
4368954, at *13 (D.D.C. Sept. 4, 2014) (withholding non-public operational details regarding
investigative techniques that are currently in use pursuant to Exemption (b)(7)(E) is appropriate);
Muslim Advocates v. U.S. Dep’t of Justice, 833 F. Supp. 2d 92, 103-104 (D.D.C. 2011) (law
enforcement-related operational directives that are not publically disclosed are appropriate for
redaction pursuant to Exemption (b)(7)(E)). Similarly, the Court concludes that the ATF
properly withheld TECS and NCIC computer file numbers pursuant to Exemption (b)(7)(E).
See, e.g., Skinner v. U.S. Dep’t of Justice, 893 F. Supp. 2d 109, 114 (D.D.C. 2012) (finding
appropriate the redaction of TECS codes pursuant to Exemption (b)(7)(E)); McRae, 869 F. Supp.
2d at 169 (“On the theory that the redacted codes, case numbers, and other computer information
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pertaining to the TECS, NCIC, and databases maintained by the North Carolina authorities are
techniques and procedures for law enforcement investigation, the ATF adequately explained that
disclosure of the information could reasonably be expected to risk circumvention of the law.”).
ii. The FBI’s Application of Exemption (b)(7)(E)
Relying on Exemption (b)(7)(E), the FBI withheld its “strategy for using a particular type
of evidence gathered during its investigation” because “[r]evealing the utility of this type of
information to the FBI would essentially instruct criminals on how best to maintain operational
security when conducting their criminal activities.” Hardy Decl. ¶ 61. The FBI also withheld,
pursuant to this Exemption, information pertinent to the “investigative focus of specific FBI
investigations” because “[r]evealing the broader investigative focuses as they relate to
interconnected investigations would reveal the scope of the FBI’s programs and the strategies it
plans to pursue in preventing and disrupting criminal activity.” Id. ¶ 62. The FBI therefore
opines that releasing this information “would enable criminals to circumvent the law.” Id. As
the plaintiff has not offered justification to find otherwise, the Court concludes that the FBI
properly withheld pursuant to Exemption (b)(7)(E) information pertaining to its investigatory
strategies. See, e.g., Labow, __ F. Supp. 2d __, __, 2014 WL 4368954, at *13; Muslim
Advocates, 833 F. Supp. 2d at 103-104.
I. CONCLUSION
For the foregoing reasons asserted by the defendants, and because the plaintiff offers no
justification to find otherwise, the Court concludes that the defendants submitted sufficient
factual detail to find that each defendant conducted a reasonable and adequate search of its
records for documents responsive to the plaintiff’s FOIA request, and released to the plaintiff all
32
information not otherwise subject to an applicable disclosure Exemption. Accordingly, the Court
must grant the defendants’ motion for summary judgment.
SO ORDERED this 20th day of November, 2014.12
REGGIE B. WALTON
United States District Judge
12
An order consistent with this Memorandum Opinion will be issued contemporaneously.
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