Sarno v. United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
MICHAEL JOHN SARNO, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-677 (RMC)
)
UNITED STATES DEPARTMENT OF )
JUSTICE, BUREAU OF ALCOHOL, )
TOBACCO, FIREARMS, AND )
EXPLOSIVES, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Michael John Sarno, an incarcerated individual, submitted Freedom of
Information Act requests to several agencies, including the Bureau of Alcohol, Tobacco and
Firearms (ATF) and the Tax Division of the Department of Justice (Tax). These requests sought
records related to the criminal case that led to his incarceration. See Compl. [Dkt. 1] ¶ 11.
Dissatisfied with the response received from the agencies, Mr. Sarno has sued to enforce his
FOIA rights.
The agencies have moved for summary judgment. For the reasons stated below,
the Court will grant Tax’s Motion for Summary Judgment and deny ATF’s motion.
I. BACKGROUND FACTS
Michael John Sarno is incarcerated at the Federal Corrections Center in
Petersburg, Virginia. After a jury trial, he was convicted of conspiracy to violate the
Racketeering and Corrupt Organizations Act (RICO), 18 U.S.C. §1962(d) (2012), and
conducting an illegal gambling business, in violation of 18 U.S.C. § 1955. He was sentenced on
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March 15, 2012 to 240 months’ incarceration on the RICO conviction and sixty months, to run
consecutively, on the illegal gambling conviction. On September 23, 2014, Mr. Sarno submitted
FOIA requests to both ATF and Tax, seeking documents related to his criminal case. Compl. ¶¶
11, 13, 21.
A. Mr. Sarno’s FOIA Request to ATF
ATF is a federal bureau that operates within the United States Department of
Justice. ATF received Mr. Sarno’s FOIA request on October 7, 2014. ATF’s Partial Statement
of Material Facts Not in Genuine Dispute (ATF SOF) [Dkt. 11-1] ¶ 1. Receiving no response,
Mr. Sarno requested status updates from ATF on November 19, 2014 and January 29, 2015.
Compl. ¶¶ 14-15. On March 27, 2015, having received no response from ATF to any of his
inquiries, Mr. Sarno appealed the constructive denial of his FOIA request to the Department of
Justice’s Office of Information Policy (OIP).1 ATF SOF ¶ 2. ATF thereafter acknowledged
receipt of Mr. Sarno’s FOIA request on June 9, 2015.2
Because Mr. Sarno’s criminal case was brought in the Northern District of
Illinois, ATF’s Disclosure Division, which handles FOIA requests, determined that its Chicago
Field Office would likely possess any records responsive to Mr. Sarno’s request. ATF MSJ Ex.
2, Decl. of Stephanie M. Boucher (Boucher Decl.) [Dkt. 11-2] ¶ 8. The Disclosure Division
submitted a search request to the Chicago Field Office on June 10, 2015, and the Chicago Field
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Because ATF had made no adverse determination in regards to Mr. Sarno’s FOIA request at
this point, OIP concluded that there was no action for it to consider on appeal. ATF SOF ¶ 4.
OIP informed Mr. Sarno of this determination by letter dated September 4, 2015. Id.2
A considerable period of time passed between Mr. Sarno’s FOIA request and ATF’s response,
far longer than the 20 days provided for a response by statute. 5 U.S.C. § 552(a)(6). All agency
actions may be relevant in assessing that agency’s response to a FOIA request, although “initial
delays in responding to a FOIA request are rarely, if ever, grounds for discrediting later
affidavits by the agency.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir.
2003). ATF’s delay in response, although unfortunate, does not rise to the level of bad faith.
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Office responded six weeks later on July 28, 2015 that it had reviewed Mr. Sarno’s case file. It
provided a categorical description of the documents the file contained. Id. ¶ 9-10.
In May 2016, the Disclosure Division conducted a search in both the “N-FORCE”
and Treasury Enforcement Communications System (TECS) databases to ascertain whether
additional responsive records existed. Id. ¶ 12. N-FORCE is ATF’s official case file database,
which allows users to run queries on a number of identifying characteristics associated with a
particular individual, including name, date of birth, or properties or vehicles associated with that
person. Id. ¶ 14. Similarly, TECS is an inter-departmental database maintained by the Bureau of
Customs and Border Protection “designed to identify individuals and businesses suspected of or
involved in violation of Federal law.” Id. ¶ 15. The Disclosure Division queried both databases
using the personally-identifying information of Mr. Sarno, including his name, Social Security
number, and date of birth. Id. ¶ 17. The search of TECS produced no results, and the search of
N-FORCE identified only the case file already identified by the Chicago Field Office. Id. ¶ 18.
After concluding its search, ATF identified the following collections of
documents: (1) approximately 21 bankers boxes of material; (2) a file cabinet drawer; (3) a 500
GB hard drive; (4) fourteen containers filled with computer discs; and (5) physical evidence not
subject to FOIA, such as firearms and chemicals. Id. ¶ 19. This resulted in the collection of
between 32,575-43,370 paper documents, as well as the contents of the 500 GB hard drive, 207
to 257 computer discs, 12 cassette tapes, and 2 VHS tapes. Id. ¶ 34. In reviewing the
documents, ATF identified eight separate categories into which each document fell. They are:
(1) grand jury material; (2) tax return information; (3) firearms trace reports; (4) wiretap, pen
register, and GPS tracking information; (5) pole camera and consensual recording information;
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(6) reports of investigations, operational plans, and supporting investigative materials; (7) search
warrants; and (8) documents originating with the United States Attorney’s Office. Id. ¶¶ 34-42.
Ultimately, ATF concluded that all responsive documents were exempt from
disclosure, and released none to Mr. Sarno. Id. ¶ 20. ATF further concluded that no part of any
of the 32,575-43,370 documents, nor any document found on any electronic media, could be
reasonably segregated from exempt information. Id. ¶ 93.
Receiving no further contact from ATF after its June 2015 acknowledgment of his
request, Mr. Sarno filed the immediate lawsuit on April 8, 2016. On May 16, 2016, ATF
informed Mr. Sarno that it had determined that all records responsive to Mr. Sarno’s request
were subject to withholding and therefore would not produce any documents to him. Id. ¶ 5.
B. Mr. Sarno’s FOIA Request to Tax
Mr. Sarno sent Tax a substantively similar FOIA request on September 23, 2014.
Compl. ¶ 13. Tax received this request on October 6, 2014, and ran its initial searches that day.
Tax MSJ Ex. 1, Decl. of Carmen M. Banerjee (Banerjee Decl.) [Dkt. 19-1] ¶¶ 8, 17. Tax also
sent Mr. Sarno an initial response shortly thereafter, on October 22, 2014. Id. ¶ 10.
Tax performed its initial search using its TaxDoc database for civil or criminal
matters associated with Mr. Sarno’s personally-identifying information, including his name and
Social Security number. Id. ¶ 18. This search yielded one paper criminal file that contained
records pertaining to Mr. Sarno. Id. ¶ 19. Having found this paper file, Tax also searched its
electronic Document Management System for any records associated with that file. Id. ¶ 23.
This search yielded no records. Id. ¶ 24.
After Mr. Sarno filed this lawsuit, Tax again searched its electronic Document
Management System using somewhat broader search terms. See id. ¶ 30. It also searched
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records of its Outlook Exchange entries to identify any electronic calendar items that may have
been associated with Mr. Sarno. Id. ¶ 32. These additional searches returned no additional
unique responsive documents. Id. ¶¶ 31, 33.
In total, Tax identified 29 pages of responsive documents. Tax found that ten of
these pages originated within Tax itself; of those ten, it withheld five in part, withheld three in
total, and wholly released two to Mr. Sarno. Id. ¶ 35. Tax referred six of the pages to the
Internal Revenue Service, which withheld all six pages as exempt. Id. ¶¶ 39, 41. Tax also
referred eight pages to the Executive Office of U.S. Attorneys (EOUSA). Id. ¶42. EOUSA
withheld six of those pages as exempt, and referred the two remaining pages to the IRS; the IRS
partially released one of the pages to Mr. Sarno. Id. ¶ 45; 53. Finally, Tax referred five pages to
the FBI, which withheld all five. Id. ¶ 56.
II. VENUE AND JURISDICTION
Section 552(a)(4)(B) of the U.S. Code grants this Court subject matter jurisdiction
over all actions brought under FOIA, and makes this an appropriate forum for venue purposes. 5
U.S.C. § 552(a)(4)(B) (“On complaint, the district court of the United States in the district in
which the complainant resides, or has his principal place of business, or in which the agency
records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from
withholding agency records and to order the production of any agency records improperly
withheld from the complainant.”); see Jones v. Nuclear Regulatory Comm’n, 654 F. Supp. 130,
131 (D.D.C. 1987).
The Court’s jurisdiction under FOIA extends only to claims arising from the
improper withholding of agency records. See 5 U.S.C. § 552(a)(4)(B); see also Lazaridis v. U.S.
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Dep’t of Justice, 713 F. Supp. 2d 64, 66 (D.D.C. 2010) (citing McGehee v. CIA, 697 F.2d 1095,
1105 (D.C. Cir. 1983)).
III. LEGAL STANDARDS
A. Summary Judgment
FOIA cases are typically and appropriately decided on summary judgment. See
Sanders v. Obama, 729 F. Supp. 2d 148, 154 (D.D.C. 2010). Under Rule 56 of the Federal Rules
of Civil Procedure, summary judgment must be granted when “the pleadings, the discovery and
disclosure materials on file, and any affidavits, show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c)(2); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The party moving for
summary judgment “bears the initial responsibility . . . [to] demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a
motion for summary judgment, a court must draw all justifiable inferences in favor of the
nonmoving party and accept the nonmoving party’s evidence as true. See Anderson, 477 U.S. at
255. The nonmoving party, however, must provide more than a “mere existence of a scintilla of
evidence . . . . [T]here must be evidence on which the jury could reasonably find for the
[nonmoving party].” Id. at 252.
B. FOIA
FOIA “represents a balance struck by Congress between the public’s right to
know and the government’s legitimate interest in keeping certain information confidential.” Ctr.
for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003). Under FOIA,
federal agencies must release records to the public upon request, unless one—or more—of nine
statutory exemptions applies. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975); 5
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U.S.C. § 552(b). To prevail in a FOIA case, a plaintiff must show that an agency has improperly
withheld agency records. See Odland v. FERC, 34 F. Supp. 3d 1, 13 (D.D.C. 2014). The
defending agency must demonstrate that its search for responsive records was adequate, that any
invoked exemptions actually apply, and that any reasonably segregable non-exempt information
has been disclosed after redaction of exempt information. See id.Because Mr. Sarno’s FOIA requests involve multiple government agencies, all of
which assert varied FOIA exemptions, a brief introduction to the relevant exemptions is
appropriate.
Exemption 3, 5 U.S.C. § 552(b)(3), allows agencies to withhold information that
is already prohibited from disclosure by another statute. “Exemption 3 differs from other FOIA
exemptions in that its applicability depends less on the detailed factual contents of specific
documents; the sole issue for decision is the existence of a relevant statute and the inclusion of
withheld material within that statute’s coverage.” Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir.
1978). Examples of statutes that prohibit disclosure of information, and thus trigger Exemption
3, include Federal Rule of Criminal Procedure 6(e), which prohibits disclosure of grand jury
material; 26 U.S.C. § 6103(a), which prohibits disclosure of third-party tax return information;
and Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-22, which
prohibits disclosure of court-ordered wiretap information. See Fund for Constitutional Gov’t v.
NARA, 656 F.2d 856, 867 (D.C. Cir. 1981) (exempting grand jury information under Exemption
3); Chamberlain v. Kurtz, 444 U.S. 842 (1979) (exempting tax return information); Miller v. U.S.
Dep’t of Justice, 562 F. Supp. 2d 82, 111 (D.D.C. 2008) (exempting wiretap information).
Exemption 5, 5 U.S.C. § 552(b)(5), exempts information “inter-agency or intra-
agency memorandums or letters which would not be available by law to a party other than an
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agency in litigation with the agency.” Exemption 5 essentially protects from disclosure any
information that would typically be covered by the attorney-client or work product privileges.
See United States v. Weber Aircraft Corp., 465 U.S. 792, 799 (“Exemption 5 simply incorporates
civil discovery privileges.”).
Exemption 6 of FOIA protects personnel, medical, or similar information, the
disclosure of which “would constitute a clearly unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(6). Exemption 7(C) provides similar protection for personal information
collected for law enforcement purposes, permitting agencies to withhold such records when its
disclosure “could reasonably be expected to constitute an unwarranted invasion of privacy.” 5
U.S.C. § 552(b)(7)(C); Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C.
Cir. 2011) (stating that Exemption (7)(C) “establishes a lower bar for withholding material” than
Exemption 6). To determine whether information falls under either of these exemptions, a court
must first identify both the privacy interests at stake and the public interest in disclosure, and
then balance these interests against each other. See Citizens For Responsibility and Ethics In
Washington v. U.S. Dep’t of Justice, 746 F.3d 1082, 1091 (D.C. Cir. 2014).
Exemption 7(A) allows agencies to withhold records which “could reasonably be
expected to interfere with law enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). Exemption
7(A) is intended to “prevent disclosures which might prematurely reveal the government’s cases
in courts, its evidence and strategies, or the nature, scope, and focus of investigations.” Maydak
v. U.S. Dep’t of Justice, 218 F.3d 760, 762 (D.C. Cir. 2000). An agency asserting Exemption
7(A) must show that disclosure could reasonably be expected to cause harm to a pending law
enforcement proceeding. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978);
see also Campbell v. HHS, 682 F.2d 256, 259 (D.C. Cir. 1982).
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Exemption 7(D) permits agencies to withhold documents “compiled by criminal
law enforcement authorit[ies] in the course of a criminal investigation” if producing the records
“could reasonably be expected to disclose the identity of a confidential source” or information
furnished by that source. 5 U.S.C. § 552(b)(7)(D). “Exemption 7(D) has long been recognized
as affording the most comprehensive protection of all FOIA’s law enforcement exemptions.”
Billington v. U.S. Dep’t of Justice, 301 F. Supp. 2d 15, 21 (D.D.C. 2004). Exemption 7(D)
applies to all information that would tend to reveal a source’s identity, and includes all
information received from a confidential source during the course of a legitimate criminal
investigation. See Parker v. U.S. Dep’t of Justice, 934 F.2d 375, 380 (D.C. Cir. 1991). “[T]he
question is . . . whether the particular source spoke with an understanding that the
communication would remain confidential.” U.S. Dep’t of Justice v. Landano, 508 U.S. 165,
172 (1993).
Exemption 7(E) protects “records or information compiled for law enforcement
purposes, but only to the extent that the production of such law enforcement records or
information . . . 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). “[E]xemption 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
v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011).
Exemption 7(F) allows agencies to withhold information concerning “any
individual” when disclosure of such information “could reasonably be expected to endanger [his]
life or physical safety.” 5 U.S.C. § 552(b)(7)(F). “While courts generally have applied
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Exemption 7(F) to protect law enforcement personnel or other specified third parties, by its
terms, the exemption is not so limited; it may be invoked to protect ‘any individual’ reasonably
at risk of harm.” Amuso v. U.S. Dep’t of Justice, 600 F. Supp. 2d 78, 101 (D.D.C. 2009). “In
reviewing matters under Exemption 7(F), courts may inquire whether there is some nexus
between disclosure and possible harm.” Id.These provisions, taken together, create a latticework that exempts from
disclosure almost all information associated with a criminal case. Despite this, agencies are still
obligated to meet their FOIA obligations and to provide the court with sufficient information to
assess the validity of exemptions claimed.
IV. ANALYSIS
A. ATF
1. Adequacy of the Search
The adequacy of an agency search is measured by its reasonableness, which
depends on the individual circumstances of each case. See Sanders, 729 F. Supp. 2d at 154; see
also Truitt v. U.S. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990). Under FOIA, any
“requester dissatisfied with the agency’s response . . . may challenge the adequacy of the
agency’s search by filing a lawsuit in the district court after exhausting any administrative
remedies.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999); see also
5 U.S.C. § 552(a)(4)(B). The defending agency then bears the burden of demonstrating “beyond
material doubt that its search was reasonably calculated to uncover all relevant documents.”
Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995).
An agency may show its search was reasonable, such that summary judgment in
its favor is warranted, through an affidavit by a responsible agency official, “so long as the
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declaration is reasonably detailed and not controverted by contrary evidence or evidence of bad
faith.” Sanders, 729 F. Supp. 2d at 155. Accordingly, affidavits that include “‘search methods,
locations of specific files searched, descriptions of searches of all files likely to contain
responsive documents, and names of agency personnel conducting the search are considered
sufficient.’” Citizens for Responsibility & Ethics v. Nat’l Archives & Records Admin., 583 F.
Supp. 2d 146, 167 (D.D.C. 2008) (quoting Ferranti v. BATF, 177 F. Supp. 2d 41, 47 (D.D.C.
2001)).
ATF contends that its search was adequate because its Disclosure Division
requested a search of its Chicago Field Office for Mr. Sarno’s casefile, which the Office located.
Boucher Decl. ¶ 8. ATF also searched both its internal database N-FORCE as well as the inter-
agency database TECS using Mr. Sarno’s personally-identifying information to confirm that no
additional records existed. Id. ¶ 18. Mr. Sarno does not contest the adequacy of ATF’s search,
and the Court has no evidence that ATF’s search was otherwise inadequate. Because the search
of the Chicago Field Office, with the confirmatory searches of the two databases, was reasonably
tailored to find all responsive documents, the Court concludes that ATF’s search was adequate.
2. Exemptions Claimed By ATF
Typically, agencies provide to courts an itemized description of all withheld and
redacted documents, with a brief description of the document, the exemptions claimed, and the
bases for the claimed exemptions. This index, known as a Vaughn Index, allows courts to
adequately assess the validity of an agency’s withholdings. See Vaughn v. Rosen, 484 F. 2d 820,
827 (D.C. Cir. 1973). A Vaughn Index is not always required, however, such as when a
categorical description of the documents suffices to give a court the information necessary to
assess an agency’s claims. In particular, courts allow agencies broadly asserting Exemption 7(A)
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over an entire criminal file to “satisfy its burden of proof under Exemption 7(A) by grouping
documents in categories and offering generic reasons for withholding the documents in each
category.” Maydak v. U.S. Dep’t of Justice, 218 F.3d 760, 765 (D.C. Cir. 2000). Categorical
descriptions in lieu of a Vaughn Index may be appropriate when an agency asserts other
exemptions as well. See id. at 766 (collecting cases).
ATF, which relies predominantly on Exemption 7(A) in withholding all
responsive documents, has not submitted a Vaughn Index, and instead identifies eight functional
categories of documents: (1) Grand Jury Material; (2) Tax Return Information; (3) TRACE
Information; (4) Wiretap, Pen Register, and GPS Tracking Information; (5) Pole Camera and
Consensual Recording Information; (6) Reports of Investigations, Operational Plans, and
Supporting Investigative Materials; (7) Search Warrants; and (8) Documents Originating with
the United States Attorney’s Office. Boucher Decl. ¶¶ 34-42. ATF asserts that all this material
is subject to withholding under Exemption 7(A), and additionally asserts several other
exemptions for each of the separate categories.
a. Exemption 7(A)
As stated above, Exemption 7(A) permits agencies to withhold records which
“could reasonably be expected to interfere with law enforcement proceedings.” 5 U.S.C.
§ 552(b)(7)(A). ATF must show disclosure of its records on Mr. Sarno’s criminal case could
reasonably be expected to cause harm to a pending law enforcement proceeding. Robbins Tire &
Rubber Co., 437 U.S. at 224. ATF relies solely on pending § 2255 habeas proceedings brought
by Mr. Sarno and certain co-defendants. See Boucher Decl. ¶ 33 (“The pending habeas actions
are the basis for the application of Exemption 7(A).”). ATF asserts that disclosing any
responsive documents would “compromise the Government’s ability to defend its position in
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Plaintiff’s ongoing 2255 proceeding, [and] also compromise the Government’s ability to
effectively defend its position in the other co-defendants’ habeas proceedings.” Id. ¶ 44.
Exemption 7(A) exists because Congress “recognized that law enforcement
agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered
in their investigations or placed at a disadvantage when it came time to present their cases” in
court. Robbins Tire & Rubber Co., 437 U.S. at 224. Still, Exemption 7(A) is not intended to
“endlessly protect material simply because it was in an investigatory file.” Id. at 230.
Exemption 7(A) was enacted by Congress as part of a package of amendments to FOIA
explicitly intended to provide public access to closed case files, and to overrule certain D.C.
Circuit decisions that Congress was concerned would allow agencies to use Exemption 7 to
endlessly protect cold casefiles from public disclosure. See id. at 226-34 (discussing legislative
history of Exemption 7(A)). While very little caselaw discusses at what point an investigation
can be said to be no longer pending, “[u]sually the ‘purpose and point’ of an investigation
expires when its goal, the holding of an adjudicatory proceeding, is reached. Hence, an
enforcement proceeding can generally be equated with a trial.” Moorefield v. U.S. Secret Serv.,
611 F.2d 1021, 1025 (5th Cir. 1980).
ATF cites no case, and the Court can identify no controlling precedent, in which
Exemption 7(A) was held to be applicable solely on the basis of an ongoing habeas proceeding.
The only time the D.C. Circuit certified the question of whether a habeas proceeding qualified as
a pending action for the purposes of Exemption 7(A), the government voluntarily withdrew its
argument asserting that it did so before the Circuit ruled on the question, for what appears to be
some concerns as to that argument’s validity. Maydak, 218 F.3d at 764. That decision, while not
precedential, illustrates the complexity of the issue.
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Habeas petitions are civil proceedings brought under, inter alia, 28 U.S.C. § 2255or § 2241, which allow an individual to challenge his detention on the grounds that it occurs in
violation of his constitutional rights. Habeas proceedings are brought at the election of a
prisoner, not the government. Prisoners are not automatically granted counsel in a habeas
proceeding as they are in a criminal proceeding. While habeas proceedings may be brought by
criminal defendants, not all habeas petitions involve criminal defendants or inmates; however,
habeas under § 2255 is specifically reserved for “a prisoner in custody under sentence of a
court.”
However, a § 2255 habeas proceeding constitutes a collateral attack by a prisoner
on a fully concluded criminal proceeding, which complicates the typical Exemption 7(A)
concerns for two reasons. First, it occurs at the prisoner’s election, and may be brought a
considerable time after the conclusion of the criminal proceedings. The law enforcement
proceeding is “pending” only because the prisoner is attacking the basis for his conviction; the
law enforcement investigation has otherwise concluded and would be dormant—and therefore
not exempt under 7(A). In other words, the pendency of the proceeding is not dependent on the
activities of law enforcement agencies, in contrast to a criminal trial and appeal. Because a
habeas proceeding could be brought a considerable time after an investigation has concluded, the
specter of a potential later-filed habeas petition could lead agencies to seek to exempt otherwise
dormant casefiles under Exemption 7(A).
Further, with the conclusion of a trial and appeal, the agencies have already had
their opportunity to—successfully—present their case in court without interference. The fruit of
the efforts protected by Exemption 7(A) have already been presented to the public in court. The
other “latticework” exemptions protecting confidential information and law enforcement
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strategies would remain in place, and material that falls under them would continue to be
exempted from disclosure under FOIA. In a post-conviction habeas proceeding, therefore, it is
not necessarily clear what non-public information Exemption 7(A) would be protecting that
would not already be subject to withholding under another exemption. “Under our public-
domain doctrine, materials normally immunized from disclosure under FOIA lose their
protective cloak once disclosed and preserved in a permanent public record.” Cottone v. Reno,
193 F.3d 550, 554 (D.C. Cir. 1999)
In this case, Mr. Sarno’s § 2255 challenge to his conviction is an ongoing
proceeding in which prosecutors must defend their prosecution and his convictions. Whatever
the problem with applying Exemption 7(A) to a criminal case file in anticipation of a future
§ 2255 habeas action, these problems are not presented here. There is no doubt that ATF’s
casefile on Mr. Sarno’s criminal proceeding was compiled for “law enforcement purposes,” and,
should his § 2255 motion succeed, a new trial would be a reasonable likelihood. See King v.
U.S. Dep’t of Justice, 08-cv-1555, 2009 WL 2951124 at *6 (D.D.C. 2009); Johnson v. FBI, 118
F. Supp. 3d 784. 793-95 (E.D. Pa. 2015).
Mr. Sarno is not left without any recourse, despite Exemption 7(A). In addition to
the already-referenced public domain rule, Mr. Sarno also has rights to discovery from the
government’s files through special rules of procedure covering § 2254 and § 2255 habeas
proceedings. Fed. R. Governing § 2254 and 2255 Cases 6. Rule 6 specifically provides for
discovery with leave of court for good cause. Id. Interrogatories, requests for admission,
document requests and depositions may be ordered. Id. Mr. Sarno’s ongoing § 2255 proceeding
will therefore not be unduly hindered by ATF’s assertion of Exemption 7(A) over his file.
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Given this, the Court finds that ATF’s assertion of Exemption 7(A) is appropriate
under the circumstances.
b. Other Exemptions Claimed
In addition to asserting Exemption 7(A) as a blanket exemption over all
responsive records in its possession, ATF asserts various exemptions for each of the identified
categories of records. ATF asserts Exemption 3 for: (1) Grand Jury Material, on the grounds
that it is protected from disclosure by Fed. R. Crim. P. 6(e), see Boucher Decl. ¶ 48; (2) Tax
Return records, on the grounds that they are protected by 26 U.S.C. § 6103, see id. ¶ 51; (3)
Wiretap records, on the grounds that they are protected by Title III of the Omnibus Crime
Control and Safe Streets Act, see id. ¶ 60; (4) Pen register records, on the grounds that they are
protected by 18 U.S.C. § 3123(d), governing disclosure of pen registers, see id. ¶ 61; (5) TRACE
data, on the grounds that it is protected by the Gun Control Act, see id. ¶ 62. ATF asserts
Exemptions 6 and 7(C) for (1) Grand Jury Material; (2) Tax Return records; (3) Wire Tap, Pen
Register, and GPS Tracking records; (4) Pole Camera and Consensual Wiring records; (5)
Reports of Investigation; (6) Search Warrants; and (7) records originating with the US
Attorney’s Office. Id. ¶ 70. It asserts Exemption (7)(D) for (1) Grand Jury Material; (2) Tax
Return records; (3) Wire Tap, Pen Register, and GPS Tracking records; (4) Pole Camera and
Consensual Wiring records; (5) Reports of Investigation; (6) Search Warrants; and (7) records
originating with the US Attorney’s Office. Id. ¶ 79. ATF asserts Exemption 7(E) for (1) Reports
of Investigation; (2) Operational Plans; and (3) Pole Camera and Consensual Recording
Operations. Id. ¶ 85. Finally, ATF asserts Exemption 7(F) for (1) Grand Jury Material; (2) Tax
Return records; (3) Wire Tap, Pen Register, and GPS Tracking records; (4) Pole Camera and
Consensual Wiring records; (5) Reports of Investigation; (6) records originating with the U.S.
16
Attorney’s Office; and (7) sealed documents (the latter of which is not one of the ATF’s
enumerated document categories). Id. ¶ 90.
At this stage, the Court is not in a position to assess the validity of ATF’s claimed
exemptions. While it is at times appropriate for an agency to rely on enumerated categories in
lieu of a Vaughn Index, see Maydak, 218 F.3d at 765, the categorization must allow the Court to
assess the adequacy of those asserted exemptions. It is clear from ATF’s affidavits that it does
not intend for each claimed exemption to apply universally to all records in each proposed
category. For example, ATF claims that the category Wiretaps, Pen Registers, and GPS
Tracking records are exempt under Exemption 3 under both Title III of the Omnibus Crime
Control and Safe Streets Act, covering wiretaps, and 18 U.S.C. § 3123(d), covering pen registers.
Both are likely valid exemptions, but neither can encompass the entire category of records
identified by ATF. The Court needs more information about how ATF has applied each of these
additional exemptions. See Dugan, 82 F. Supp. 3d at 501; Fowlkes v. ATF, 67 F. Supp. 3d 290,
306 (D.D.C. 2014) (“Here, the declarant’s explanation merely mirrors the language of the
exemption. Missing is any description . . . or any statement from which the Court could
conclude that disclosure of the information might reveal a law enforcement technique or
procedure. The ATF thus fails to justify its decision to withhold information . . . .”).
3. Segregability
ATF asserts that “[t]he ATF Senior Special Agent from the Chicago Field
Division reviewed the materials responsive to Plaintiff’s FOIA request and determined that no
documents could be reasonably segregated from exempt information and produced to Plaintiff
pursuant to Exemption 7(A).” Boucher Decl. ¶ 93. Thus, ATF determined that no part of any of
the more than 30,000 responsive records in its possession was segregable from exempt
17
information. While ATF asserts in its briefs that such segregability analysis was done for all
claimed exemptions, see ATF Mot. at 38, its Declarations only make reference to Exemption
7(A). Boucher Decl. ¶ 93. Several categories of records also seem to facially include documents
likely to be in the public domain, including, inter alia, “exhibits” that originated with the U.S.
Attorney’s office.
Typically a categorical list is appropriate under Exemption 7(A) in lieu of specific
document descriptions. Here, however, the harm articulated by ATF is predicated on the
assumption that the materials are not already in the public domain. Rather than speculate about
the materials in the investigative file or the extent to which they were entered into the public
record at Mr. Sarno’s trial, the Court will order ATF to supplement its filings and address, with
more particularity: (1) the specific materials and information in the investigative file; (2)
whether or not specific materials or information became matters of public record at Mr. Sarno’s
trial; and (3) the connection between the specific materials and information in the investigative
file and the specific exemptions, beyond Exemption 7(A), upon which ATF is relying. See
Johnson, 118 F. Supp. 3d at 796. ATF may do so, to the extent possible, through more detailed
affidavits in lieu of a full Vaughn Index.
B. Tax
1. Adequacy of the Search
In response to Mr. Sarno’s request, Tax performed a multi-pronged search using
Mr. Sarno’s personally-identifying information in order to identify responsive documents. Tax
searched its primary case management system, TaxDoc, to search for any criminal or civil case
associated with Mr. Sarno’s personally-identifying information. Banerjee Decl. ¶¶ 16-21. It also
searched its internal electronic document storage system, the Document Management System.
18
Id. ¶ 22-24. After this litigation began, Tax again searched its Document Management System,
using a broader set of search terms, as well as its Outlook Express internal calendar records. Id.
¶¶ 30-33.
As with ATF, Mr. Sarno also does not contest the adequacy of Tax’s search.
Tax’s initial search of its TaxDoc system identified one paper file, and its subsequent several
searches produced no additional nonduplicative documents. Given the evidence presented by
Tax, the Court concludes that its search was adequate.
2. Exemptions Claimed by Tax
Tax’s search produced a total of 29 pages of responsive records. Of these, Tax
determined that 19 pages should be referred out to originating agencies for independent
assessment. Tax determined that the remaining ten pages had been produced internally by Tax.
Of those ten, Tax wholly withheld three pages, partially released five with redactions, and
wholly released two. Banerjee Decl. ¶ 11. Tax describes in detail the nature and substance of
each of the eight pages withheld in whole or in part. See Id. ¶¶ 36-38. The five pages partially
withheld were based on Exemptions 3, 5, 6, and 7(C), and the three pages withheld entirely were
based on Exemption 5. Id. ¶ 35.
Mr. Sarno does not contest the grounds upon which Tax withheld its own internal
records; he limits his protestations to the conduct of the agencies to whom Tax referred records.
See Pl.’s Tax Opp’n at 5 (“Although the Banerjee Declaration reasonably describes and justifies
the nondisclosure of the pages that Tax reviewed, it provides no such information with respect to
the 19 pages it referred to the IRS, EOUSA, or FBI.”). Because Mr. Sarno does not dispute the
reasonableness of Tax’s own withholdings, and because the Court’s own review of Tax’s
submitted materials leads it to the conclusion that its withholdings were reasonable, the Court
19
concludes, without extended discussion, that Tax met its burden with regards to its own internal
review.
In his opposition brief, Mr. Sarno protests that all agencies to whom Tax referred
records—the IRS, EOUSA, and the FBI—failed to “(1) sufficiently describe the document and
the justifications for nondisclosure with reasonably specific detail; and (2) properly justify the
reasoning for withholding documents under the FOIA exemptions asserted, and disclosed
‘reasonably segregable’ non-exempt information.” Pl.’s Tax Opp’n ¶ 20. In reply, Tax has
supplemented its submissions with additional affidavits from all referral agencies, and has itself
provided general descriptions of the documents. See Tax Reply Exs. 1-4 [Dkt. 32]; see generally
Tax Reply.3
a. FBI
Tax referred five pages of records to the FBI. Tax Reply ¶ 26. FBI determined
that these five pages were actually two IRS documents, one of which contained FBI equities.4
Tax Reply Ex. 5, Suppl. Banerjee Decl. [Dkt. 32-5] ¶ 9. The only FBI material information in
this document relates to a court-ordered wiretap. Hardy Decl. ¶¶ 11-12. Court-ordered
wiretaps—and information obtained from them—are obtained pursuant to Title III of the
Omnibus Crime Control and Safe Streets Act, and are exempt from disclosure under Exemption
3. See Miller v. U.S. Dep’t of Justice, 562 F. Supp. 2d 82, 111 (D.D.C. 2008) (“[I]nformation
pertaining to wiretaps may be withheld under Exemption 3.”). Accordingly, the FBI asserts that
Exemption 3 justifies withholding this information. Hardy Decl. ¶¶ 11-12. As this wiretap
3
Due to a computer issue, Tax’s Reply Exhibit 4, FBI Hardy Decl. [Dkt. 32-1] is available on
the docket at Dkt. 33-1.
4
FBI initially withheld all five pages itself, but on March 29, 2017, the FBI informed Tax that
the document was actually an IRS document. Suppl. Banerjee Decl. ¶ 9.
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information is appropriately withheld under Exemption 3, FBI, and by extention Tax, has
adequately justified its withholding in this circumstance.5
b. EOUSA
Tax referred eight pages of records to EOUSA. EOUSA initially determined that
two pages were IRS records, and so referred those two pages to the IRS. Tax Reply ¶ 11. The
IRS, after withholding some third-party tax information, referred the two pages back to EOUSA
for further review. Id. ¶ 8. EOUSA ultimately determined that all eight pages were fully exempt
from disclosure under Exemption 3 because they constituted grand jury material. See Tax Reply
Ex. 2, IRS Boseker Decl. [Dkt. 32-2] ¶ 21. Grand jury material is properly withheld under
Exemption 3 under Federal Rule of Criminal Procedure 6(e), which regulates disclosure of grand
jury material. Fed. R. Crim. P. 6(e). “[T]he disclosure of matters occurring before the grand jury
is the exception and not the rule.” Fund for Constitutional Gov’t v. NARA, 656 F.2d 856, 867
(D.C. Cir. 1981). This presumption of nondisclosure encompasses “not only the direct revelation
of grand jury transcripts but also the disclosure of information which would reveal ‘the identities
of witnesses or jurors, the substance of the testimony, the strategy or direction of the
investigation, the deliberations or questions of jurors, and the like.” Id. at 869. The documents
withheld, all of which concern grand jury proceedings and materials, including the impressions
of and preparations for grand jury proceedings by government attorneys, see Boseker Decl. ¶ 21;
Tax Reply at 7-11, are appropriately withheld under Exemption 3.6
5
FBI also asserts that the information is appropriately withheld under Exemptions 7(A) and
7(E). As the Court has already determined that the information is appropriately withheld under
Exemption 3, it will not undertake a further analysis of the other possible exemptions. See
Utahamerican Energy, Inc. v. Dep’t of Labor, 685 F.3d 1118, 1123 (D.C. Cir. 2012) (explaining
that the government need only prevail on one exemption).
6
EOUSA also asserted Exemptions 5 and Exemptions 7(C) concerning which the Court does not
undertake further analysis. See Utahamerican Energy, Inc., 685 F.3d at 1123.
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c. IRS
Finally, IRS reviewed 13 pages: (1) six pages referred to it by Tax directly,
comprising a six-page Grand Jury Memorandum; (2) five pages initially referred by Tax to the
FBI, which the FBI determined were actually IRS pages with FBI information and which
consisted of a three-page Grand Jury Access List, and a two-page Fact Sheet; and (3) two pages
from EOUSA, which ultimately withheld those pages itself. Of the 11 pages on which the IRS
made final determinations, the Grand Jury Memorandum, the Grand Jury Access List, and the
Fact Sheet7 were withheld in their entirety. See Tax Reply Ex. 1, Minauro Decl. [Dkt. 32-1] ¶ 4;
Tax Reply Ex. 3, Zehme Decl. [Decl. 32-3] ¶ 7.
The IRS withheld all three documents under Exemption 3. For the Grand Jury
Memorandum and the Grand Jury Access List, the IRS asserted that the entire contents were
exempt from disclosure by virtue of the fact that, as their titles imply, they constitute grand jury
materials. See Minauro Decl. ¶ 4, 10; Zehme Decl. ¶ 11. This is appropriate grounds for
exemption. The IRS withheld the Fact Sheet under Exemption 3 on two grounds. First, third-
party tax return information was withheld on the grounds that it is exempt under the Internal
Revenue Code § 6103(a), which prohibits disclosure of such information. Courts have ruled that
§ 6103(a) is an exempting statute for the purposes of Exemption 3, and, therefore, tax return
information is exempt from disclosure under FOIA. See Sea Shepherd Conservation Soc. v. IRS,
89 F. Supp. 3d 81, 98 (D.C. Cir. 2015). Second, information related to a court-ordered wiretap
was withheld under Title III of the Omnibus Crime Control and Safe Streets Act; the FBI
independently asserted the same exemption, as already detailed by the Court. This is an
7
While the IRS did assess the two pages referred to it from EOUSA, the Court has already held
that those two pages were appropriately withheld by EOUSA in their entirety, and so does not
revisit IRS’s own determinations.
22
appropriate grounds for withholding under FOIA Exemption 3. The IRS has, therefore,
adequately shown that its withholdings under FOIA Exemption 3 were appropriate.8
3. Segregability
As stated above, Tax bears the burden of demonstrating that all reasonably
segregable portions of a record have been disclosed, and may do so by “offering an affidavit with
reasonably detailed descriptions of the withheld portions of the documents and alleging facts
sufficient to establish an exemption.” Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1148
(9th Cir. 2008). The combined affidavits of both Tax and the referral agencies describe each
record, including records partially or wholly withheld, in considerable detail, which has allowed
the Court to assess the steps taken to determine segregability. The records withheld by the
referral agencies have been discussed in detail above. For the eight pages withheld in part or in
full by Tax itself, it addresses the segregability of each document in turn. See Banerjee Decl.
¶¶ 36(A)(ii); 36(B)(iv); 36(C)(iv)(c); 37. In each case, the withheld information is either (1)
third-party information properly withheld under Exemptions 6 and 7(C); (2) tax information
withheld under Exemption 3; or in one case (3) a letter written by a Tax Division attorney
withheld under Exemption 5. The detailed descriptions of the withholdings demonstrate that no
further reasonably segregable, nonexempt information could be released.
V. CONCLUSION
For the foregoing reasons, the Court will deny ATF’s Motion for Summary
Judgment [Dkt. 11] and order ATF to supplement its description of the records withheld in order
to more fully explain whether any documents otherwise exempt on Exemption 7(A) have entered
8
Like the other agencies, the IRS asserts alternate exemptions, namely Exemption 5, Exemption
6 and Exemption 7(C). The Court does not analyze these additional exemptions.
23
the public domain. The Court will grant Tax’s Motion for Summary Judgment [Dk. 19], and
judgment will be entered in Tax’s favor.
A memorializing Order accompanies this Memorandum Opinion.
Date: September 29, 2017 /s/
ROSEMARY M. COLLYER
United States District Judge
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