Kowal v. United States Department of Justice ( 2021 )

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
Barbara Kowal, a paralegal at the Federal Defender for the Middle District of Florida,
filed this Freedom of Information Act suit against the Department of Justice and three of its
components, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Federal Bureau of
Investigation, and the Drug Enforcement Agency. 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 others 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 were released in part to
Kowal. After cross-motions for summary judgment, the Court granted summary judgment for
Defendants as to the ATF and the adequacy of the FBI’s search, but concluded that the FBI’s
Vaughn indices were inadequate. Since then, the FBI has updated its Vaughn indices and the
parties have cross-moved again for summary judgment.
Defendants argue that their updated Vaughn indices are sufficient, they properly invoked
certain FOIA exemptions to justify their withholdings, and they met their duty to disclose all
reasonably segregable portions of the records at issue. In response, Kowal argues that the FBI’s
Vaughn indices are still inadequate, that the FBI failed to adequately justify the claimed FOIA
exemptions, improperly withheld information in the public domain, and failed to disclose all
reasonably segregable information. The Court finds that the FBI’s Vaughn indices are sufficient
and that it properly invoked Exemptions 3, 6, 7(C), 7(D), 7(E), and 7(F). The Court also finds
that the FBI met its duty to disclose all reasonably segregable portions of the records at issue.
The Court will therefore grant Defendants’ motion and deny Kowal’s.
I. Background
The Court granted Defendants’ previous motion for summary judgment as to the ATF
and as to the adequacy of the FBI’s search. Kowal v. DOJ, 490 F. Supp. 3d 53, 72 (D.D.C.
2020). The Court assumes familiarity with the facts and the contents of its prior Opinion and
Order. Since that time, Defendants have filed updated Vaughn indices and additional
declarations. See ECF 31-2. Pending before the Court are their renewed cross-motions for
summary judgment. ECF No. 31; ECF No. 36.
II. Legal Standard
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute to any material fact and the movant is entitled to 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 Rels. 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
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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. See
Students Against Genocide v. U.S. 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).
III. Analysis
A. Sufficiency of FBI’s Vaughn Indices
Kowal again challenges the sufficiency of the Vaughn indices provided by the FBI.
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.
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A court evaluates a Vaughn index on its function, not its form. See 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. See
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 Cent., 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. v. Bell,
603 F.2d 945, 949 (D.C. Cir. 1979).
Kowal argues that the FBI has not cured the deficiencies in its Vaughn indices and fails to
“provide 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 Cent., Inc., 566 F.2d at 251. Kowal also argues that
“[f]requently the level of detail in the document descriptions is insufficient to allow a requestor
to reasonably determine whether the claimed exemptions have been properly invoked.” ECF No.
35 at 15. In ruling on the previous cross-motions for summary judgment, the Court noted that
the lack of document descriptions or submission of redacted documents made it difficult to
“understand with particularity which portions the FBI seeks to withhold under the exemptions
claimed.” Kowal v. DOJ, 490 F. Supp. 3d 53, 68 (D.D.C. 2020).
But the FBI’s revised indices resolve these issues. The Vaughn indices now include
descriptions as to the types of documents to which the exemptions are being applied. These
descriptions work in combination with coded designations and Defendants’ declarations to give
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further context as to why each exemption is relevant. In combination, these tools provide
enough information for the Court to understand the nature of the redacted material. See Judicial
Watch, 449 F.3d at 145. And ultimately, the FBI’s revised Vaughn indices adequately enable the
Court to review the agency’s withholdings under these exemptions. See Lykins, 725 F.2d at
1463.
B. The FBI’s Withholdings
1. Exemption 3
Defendants invoke Exemption 3 to withhold documents “relating to wire and electronic
communications interception and interception of oral communications.” ECF No 31-2 at 38
(“Second Hertel Decl.”) ¶ 9. FOIA’s Exemption 3 exempts records that are “specifically
exempted from disclosure by statute” if the statute “requires that the matters be withheld from
the public in such a manner as to leave no discretion on the issue.” 5 U.S.C. § 552(b)(3)(A)(i).
And the D.C. Circuit has held that “intercepted communications” obtained under a Title III
wiretap fall “squarely within the scope” of Exemption 3. Chong v. DEA, 929 F.2d 729, 733
(D.C. Cir. 1991).
Defendants invoked this exemption for two pages of a “narrative summary of the
initiation of an investigation of a targeted drug trafficking organization.” See ECF No. 31-2 at
12. The FBI’s declaration explains that it invoked the exemption because portions of the records
are based on wire and electronic communication interceptions and are thus protected under 18
U.S.C. § 3510. Second Hertel Decl. ¶ 9. But Kowal argues that Defendants have not met their
burden to withhold these pages due to the potential applicability of the public domain doctrine.
See ECF No. 35 at 17. She reasons that the recorded wiretaps were played at trial and are
therefore part of the public domain. She invokes Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir.
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1999), to suggest that these recordings “los[t] their protective cloak once disclosed” and that
without more information, the Court cannot evaluate whether the FBI improperly withheld
materials already in the public domain.
But Kowal’s argument misses a critical point—the Vaughn index makes clear that the
records at issue are part of a “narrative summary” document, not a transcript or tapes of a
wiretap. See ECF No. 31-2 at 12. Even assuming the wiretaps referenced in the narrative
summary were played at trial, Kowal has not shown that the document at issue is part of the
public domain. “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). Thus, Defendants have properly
invoked Exemption 3.
2. Exemptions 6 and 7(C)
Under Exemptions 6 and 7(C), Defendants withheld the identities of, and personal
information about, individuals involved or associated with law enforcement investigations.
Second Hertel Decl. ¶ 16. All information that “applies to a particular individual” qualifies for
consideration under Exemption 6. See U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602
(1982); see also 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 under Exemption 7(C), “the standard for evaluating a
threatened invasion of privacy interests resulting from the disclosure of records compiled for law
enforcement purposes 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
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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 FBI
properly invoked Exemption 7(C). See Roth v. DOJ, 642 F.3d 1161, 1173 (D.C. Cir. 2011)
(“[A]ll information that would fall within the scope of Exemption 6 would also be immune from
disclosure under Exemption 7(C).”). Narrowing the analysis further, because Kowal does not
dispute that the requested records about Troya’s criminal prosecution are law enforcement files
for purposes of Exemption 7(C), the Court need only evaluate the FBI’s redactions by balancing
“the privacy interests involved against the public interest in disclosure.” SafeCard Servs., Inc. v.
S.E.C., 926 F.2d 1197, 1205 (D.C. Cir. 1991).
“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 personally identifiable 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 exempt from disclosure. Id.
at 1206. Since Kowal does not point to any illegal activity implicating the FBI or its redactions
under Exemptions 6 and 7(C), the Court cannot find fault with the balance that the FBI struck.
Kowal argues that Defendants have provided no facts to suggest that disclosure would
work a clearly unwarranted invasion of personal privacy so as to outweigh public interest in
disclosure. See ECF No. 35 at 21. In part, this argument presumes that these individuals’
identities were revealed at trial. While perhaps some of them were, Kowal does not meet her
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burden to show that the identical documents and information that FBI seeks to withhold here
were made public then. See Bartko v. DOJ, 167 F. Supp.3d 55, 72 (D.D.C. 2016) (“Aside from
the trial testimony she references, the plaintiff has not even tried to explain how the balance of
the materials she seeks is public.”) (cleaned up); Black v. DOJ, 69 F. Supp. 3d 26, 35 (D.D.C.
2014) (determining burden unmet where plaintiff provided court transcripts but failed “to point
to specific information identical to that being withheld that has been placed in the permanent
public record”).1 Further, “[e]ven if [Kowal] already knows the identities of trial witnesses, the
[FBI’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 withheld material is in the public
domain, or that the balance of interests tips towards release of the information withheld by
Defendants under Exemptions 6 and 7(C).
3. Exemption 7(D)
Exemption 7(D) allows the withholding of records that could disclose the identity of
confidential sources as well as any information those sources provide. 5 U.S.C. § 552(b)(7)(D).
1
Kowal also argues that an October 31, 2007, third-party plea agreement, Exhibit BB (TT 5953),
is within the public domain because it was admitted into evidence at Troya’s trial. ECF No. 44-
3. But the FBI attests that the plea agreement is not available on the public docket and thus is
not in the public domain. In Cottone, the court held that the government can rebut a plaintiff’s
suggestion that trial records are in public domain by showing that the evidence has since been
“destroyed, placed under seal, or otherwise removed from the public domain.” 193 F.3d 550,
556 (D.C. Cir. 1999). Thus, because the plea agreement is not available on the public docket, it
is not in the public domain, and may be withheld under Exemption 7(C).
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In determining the applicability of the exemption, “the question is . . . whether the particular
source spoke with an understanding that the communication would remain confidential.” DOJ v.
Landano, 508 U.S. 165, 172 (1993). Defendants invoked Exemption 7(D) to “withhold portions
of the report that contained information that would disclose the identity of and the information
provided by a confidential source.” Second Hertel Decl. ¶ 27. Defendants claim that sometimes
they gave an express assurance of confidentiality to their sources and, at other times, an
assurance of confidentiality was implied, given the subject matter of the investigation. Id. ¶ 28;
ECF No. 31 at 14.
Kowal argues that Defendants improperly presumed that any individuals who provided
information to the FBI did so under an implied assurance of confidentiality. See ECF No. 35 at
25. Kowal is right that it would be improper to apply a blanket presumption. See Landano,
508 U.S. at 175–76. But an assurance of confidentiality can still be implied based on the nature
of the criminal investigation and the informant’s relationship to the target. Id. at 179. This is
one of those situations. The FBI explains that the sources provided information about a “drug
organization” and the related murder of a family on a roadside. ECF No. 40-2 at 11. 2 And
Courts often find that confidentiality is implied in illicit drug trade investigations because violent
reprisal is so common. See, e.g., Wilson v. DEA, 414 F. Supp. 2d 5, 15 (D.D.C. 2006); Mays v.
DEA, 234 F.3d 1324, 1329–30 (D.C. Cir. 2000); Love v. DOJ, No. 13-cv-1303,
2
To the extent Kowal argues that the “particularized approach” laid out in Landano requires
information about the specific circumstances of each informant, ECF No. 35 at 24, she overstates
the holding of that case. Landano rejects a categorical presumption of confidentiality for all
investigations and instead requires the government to distinguish those investigations for which
they assert Exemption 7(D) from the run-of-the-mill variety. See also Quiñon v. FBI,
86 F.3d 1222, 1231 (D.C. Cir. 1996) (discussing the “case-specific factor” cited to justify
invocation of Exemption 7(D)). But Landano does not require that each distinguishing factor be
provided to the Court as to each individual source, and Kowal cites no case law to support such a
requirement.
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2015 WL 5063166 at *6 (D.D.C. 2015). Because of the nature of the investigation, the Court
can infer an assurance of confidentiality. And this inferred assurance of confidentiality allows
the Court to conclude that Defendants properly invoked Exemption 7(D).
4. Exemption 7(E)
Exemption 7(E) allows the withholding of documents complied for law enforcement
purposes if disclosing such records “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). Agencies face a “relatively low bar” when
trying to withhold information under Exemption 7(E). Blackwell v. FBI, 646 F.3d 37, 42 (D.C.
Cir. 2011). The agency need only “demonstrate logically how the release of the requested
information might create risk of circumvention of the law.” Id. (quoting Mayer Brown LLP v.
IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009)).
Both the FBI and DEA’s Vaughn indices reflect withholdings based on this exemption.
The FBI withheld four categories of information: “Sensitive Information within FBI FD-515
Forms,” “Internal Secure File Paths and E-mail Web Addresses,” “Investigative Techniques and
Procedures Relevant to the FBI’s Informant Program,” and “Database Identifier[s].” See ECF
No. 19-6 at 30–35. The Hardy Declaration describes each of these categories and presents the
logic for how release of the requested information might create risk of circumvention of the law.
See ECF No. 19-6 at 30–35. And the DEA invoked this exemption to withhold several pages of
a “Organized Crime Drug Enforcement Task Force (OCDETF) Investigation Initiation Form
Narrative Summary of the Case Investigation.” ECF No. 31-2 at 52–57. The Hertel Declaration
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also explains that the exempt portions “deal with manpower requirements, tools to be used in the
investigation, strategy for pursuing the targeted information, and more.” ECF No. 31-2 at 46–47.
Kowal contests Defendants’ reliance on Exemption 7(E) on several grounds. First, she
argues that the “FBI has failed to demonstrate that the information it has withheld concerns
techniques that are not otherwise already in the public domain.” ECF No. 35 at 28. And second,
she argues that Defendants have not shown that they have met their segregability responsibilities
about material withheld under Exemption 7(E). She specifically flags a document appearing at
bates-stamped page 141, which Defendants withheld in full, despite their invocation of 7(E) to
redact “Internal Secure File Paths and E-mail Web Addresses.” ECF No. 35 at 28–29. And
finally, she challenges Defendants’ establishment of a logical connection between the withheld
information and circumvention of the law, specifically pointing to information withheld under
the “database identifiers” and “internal secure file paths” categories. ECF No. 44 at 19–20.
Defendants face only a relatively low bar to invoke Exemption 7(E), and they have
cleared it. As for Kowal’s public domain argument, the Hardy Declaration makes clear that
information related to publicly known law enforcement techniques was withheld because it also
included non-public information. For example, Defendants acknowledge that the surveillance
techniques discussed on pages with redactions for “Sensitive Information within FBI FD-515
Forms” are publicly known. But the information redacted there is a rating scale assessing the
effectiveness of each technique in the context of the investigation, as well as information about
law enforcement partnerships used to carry out the techniques. Kowal does not argue that this
kind of specific contextual and analytical information is publicly known. And as Defendants
suggest, this sort of information could alert potential criminals to the techniques that the FBI
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finds useful in a certain type or stage of investigation, as well as their law enforcement partners
that might be involved in these investigative methods.
Kowal’s arguments related to “Internal Secure File Paths and E-mail Web Addresses”
also come up short. First, as to bates-stamped page 141, Defendants explain that a sensitive file
path was withheld under Exemption 7(E), but that other information on that page was withheld
under other exemptions, which ultimately caused Defendants to withhold the entire page. ECF
40-1 at 5. And second, Defendants have met their burden to “demonstrate logically how the
release of the requested information might create risk of circumvention of the law.” Blackwell,
646 F.3d at 42. The FBI explains that “internal secure file paths” “if released, could allow
hackers with technical skills an opportunity to exploit the FBI by disrupting the FBI’s internal
communications. By releasing this information publicly, the FBI could jeopardize its own secure
technological infrastructure thereby assisting criminals in circumventing the law.” ECF 40-1 at
5. And as for “database identifiers,” the FBI explains that “[r]eleasing the identity of this
database would give criminals insight into the available tools and resources the FBI and its
partners use to conduct criminal and national security investigations.” ECF 19-6 at 35. This
kind of technical information is regularly withheld under Exemption 7(E), and the FBI has
sufficiently explained the logic that justifies withholding it here. See Price v. DOJ, No. 18-cv-
1339 (CRC), 2020 WL 3972273, at *13 (D.D.C. July 14, 2020); Dutton v. DOJ, 302 F. Supp.
3d 109, 125 (D.D.C. 2018).
5. Exemption 7(F)
Exemption 7(F) allows the withholding of documents compiled for law enforcement
purposes if disclosure “could reasonably be expected to endanger the life or physical safety of
any individual.” 5 U.S.C. § 552(b)(7)(F). Defendants only invoke Exemption 7(F) in
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conjunction with Exemption 7(C). ECF No. 31-2 at 7–31. Given that Exemption 7(F) is “an
absolute ban against certain information and, arguably, an even broader protection than 7(C),”
Raulerson v. Ashcroft, 271 F. Supp. 2d 17, 29 (D.D.C. 2002), and as the Court has determined
that Defendants properly invoked Exemption 7(C), the Court need not reach the applicability of
Exemption 7(F). See Wilson v. DEA, 414 F. Supp. 2d 5, 14 n.8 (D.D.C. 2006).
C. Segregability of the Documents FBI Withheld in Full
Finally, Kowal argues that the FBI failed to show how portions of documents it withheld
in full were not segregable. Segregability is analyzed using a burden-shifting framework.
Agencies must provide a “detailed justification” for the non-segregability of the withheld
information, although not “so much detail that the exempt material would be effectively
disclosed.” Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002). Agencies
typically meet their initial burden by providing a Vaughn index and “a declaration attesting that
the agency released all segregable material.” Judicial Watch, Inc. v. DOJ, 20 F. Supp. 3d 260,
277 (D.D.C. 2014). Once that happens, “[a]gencies are entitled to a presumption that they
complied with the obligation to disclose reasonably segregable material.” Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). The plaintiff must then produce a
“quantum of evidence” rebutting this presumption, at which point “the burden lies with the
government to demonstrate that no segregable, nonexempt portions were withheld.” Id.Kowal argues that Defendants’ justifications for withholding the documents in full were
too conclusory and circular to prove that the agency properly determined that there were no
segregable portions. ECF No. 40 at 30. But the FBI has met its initial burden here and the
plaintiff has not produced a “quantum of evidence” to rebut it. The FBI has provided a Vaughn
index detailing which documents have been withheld in full and which exemptions were applied.
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And, as its declaration explains, “any non-exempt information on [pages withheld in full] was so
intertwined with exempt material, no information could be reasonably segregated for release.”
ECF 19-6 at 38. Upon review of the relevant Vaughn indices and Defendants’ declarations, the
Court is satisfied that Defendants have shown that no portion of the documents withheld in full is
reasonably segregable and therefore must be disclosed.3
IV. Conclusion
For all the above reasons, the Court will grant Defendants’ Motion for Summary
Judgment and deny Kowal’s Motion for Summary Judgment. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: September 30, 2021
3
Upon consideration of the Plaintiff’s Proposed Amended Counterstatement of Material Facts,
ECF No. 43-1, the Court does not find that the Proposed Counterstatement materially impacts its
opinion or the reasoning underlying it. Therefore, the Court will deny the Plaintiff’s Motion to
Amend as moot.
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