Holt v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
MARVIN LEON HOLT, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1515 (RBW)
)
UNITED STATES DEPARTMENT )
OF JUSTICE, et al., )
)
Defendants. )
___________________________________ )
MEMORANDUM OPINION
The plaintiff brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, and the Privacy Act, 5 U.S.C. § 552a, against the United States Department of Justice
(“DOJ”).1 This matter is currently before the Court on the DOJ’s motion for summary judgment.
For the reasons discussed below, the motion will be granted in part and denied in part.
I. BACKGROUND
A. Requests to the Executive Office for United States Attorneys (“EOUSA”)
1. Request No. 08-869
The plaintiff submitted a FOIA request to the EOUSA on March 5, 2002. Complaint
(“Compl.”) at 2. He sought the following information:
1
For purposes of the FOIA, the term “agency” includes “any executive department,
military department, Government corporation, Government controlled corporation, or other
establishment in the Executive Branch of the Government . . ., or any independent regulatory
agency.” 5 U.S.C. § 552(f)(1). The DOJ is an executive agency to which the FOIA applies, and
the Court considers the DOJ as the proper party defendant.
1
[A]ny and all materials for the entire central file that your agency . .
. has compiled to date, relating to me, and a list of whatever
information your agency[] . . . may have designated in this file or any
portion thereof, and the reason for each designation, and the name of
the person and his or her title requesting same.
Memorandum of Points and Authorities in Support of Motion for Summary Judgment on Behalf
of Defendants Executive Office for United States Attorneys and Federal Bureau of Investigation
(“Def.’s Mem.”), Declaration (“Decl.”) of David Luczynski (“Luczynski Decl.”), Exhibit (“Ex.”)
A (FOIA Request) at 1.2 EOUSA staff assigned to the portion of the request seeking access to
records about himself a tracking number, Request Number (“No.”) 02-857. Id., Luczynski Decl.
¶ 6.
On April 11, 2007, the EOUSA advised the plaintiff that two boxes of potentially
responsive records had been located at the United States Attorney’s Office for the District of
Columbia (“USAO DDC”).3 Compl. at 3-4; Def.’s Mem., Luczynski Decl. ¶ 8. In order to limit
the potential fees incurred for searching and copying so many records, the EOUSA informed the
plaintiff of his opportunity to reformulate his request. Def.’s Mem., Luczynski Decl., Ex. E
(April 11, 2007 letter from W.G. Stewart II, Assistant Director, FOIA and Privacy Act Staff,
2
In addition, the plaintiff requested files pertaining to “Mark Williams, Robert
Smith and notices and summaries of Det. Vivian Col[e]man, James F. Johnson & Michael
Baylor.” Def.’s Mem., Luczynski Decl., Ex. A at 2. Insofar as the plaintiff sought records
pertaining to third parties, the EOUSA denied this portion of the request because the plaintiff
provided neither written authorization from these third parties for release of any records
pertaining to them, proof of their death, nor a public interest sufficient to outweigh their personal
privacy interest. Id., Ex. B (EOUSA correspondence regarding Request Number (“No.”) 02-
856) at 1.
3
Apparently in error, by letter dated April 18, 2008, the EOUSA advised the
plaintiff that the USAO DDC located no records responsive to his FOIA request. Def.’s Mem.,
Luczynski Decl. ¶ 7.
2
EOUSA, DOJ). The plaintiff’s reformulated FOIA request read as follows:
I was indicted [on] [November] 12, 1992, criminal No. F-8825-92.
I am requesting the testimony of Janet, Lawence, Irving Miller, Edith
Diane Moye, Qugustine Williams, Tracy Locks, Karen Thompson,
Curtis Dixon, Tyrone Thomas, Rober Smith, Mark Williams, Michael
Williams and Jake. I am requesting everything pertaining to this
case, with the exception of the trial transcript, Michael Baylor and
Carolyn grand jury statements. I am requesting the investigators [sic]
notes of Michael Baylor, Jame[s] F. Johnson, Viv[i]an Coleman and
Charles Culver.
Id., Ex. F (April 20, 2007 reformulated FOIA request). The EOUSA assigned the portion of
reformulated request for records about the plaintiff a new tracking number, Request No. 08-869.4
Id., Ex. G (April 2, 2008 letter from W.G. Stewart II) at 1; see Compl. at 4.
On April 17, 2009, the EOUSA released to the plaintiff six pages of records in full and 20
pages of records in part, after having redacted certain information under FOIA Exemptions 7(C),
7(D), and 7(F). Compl. at 5; Def.’s Mem., Luczynski Decl. ¶ 11. The plaintiff appealed this
decision administratively to the DOJ’s Office of Information and Privacy (“OIP”), Def.’s Mem.,
Luczyinski Decl. ¶¶ 12-13; see Compl. at 5, and the OIP affirmed the EOUSA’s action, Def.’s
Mem., Luczynski Decl. ¶ 14.
2. Request Nos. 09-1701 and 09-2392
In 2009, the plaintiff submitted a FOIA request directly to the USAO DDC. Compl. at 6.
He sought the following information:
[A]ny and all records, information, reports, or other files that relate
to me specifically and/or make reference to me indirectly in regards
4
Again, the EOUSA denied the portion of the FOIA request for records pertaining
to third parties, id., Luczynski Decl. ¶ 15, and denied the request because the plaintiff had not
provided “an express agreement and consent form from the third [parties], proof of death, or a
showing of how the information benefits the public interest,” id.3
to a homicide that occurred on or about May 14, 1992, in the
Northeastern secture [sic] of Washington, DC, at about 1:30 AM.
The victim’s name is LEWIS McCLAIN, but this request should not
be construed as requesting information of [a] personal nature related
to Mr. McCLAIN. I was tried and convicted of Mr. McCLAIN’s
murder in the Superior Court for the District of Columbia. This
request is made to discover any evidence that may serve to exonerate
me of Mr. McCLAIN’s death, or serve to support my post-conviction
litigation.
Def.’s Mem., Luczynski Decl., Ex. M (April 21, 2009 letter to the USAO DDC) at 2. The
request was forwarded to the EOUSA for processing, id., Ex. N (May 7, 2009 letter from A.L.
Dennis, FOIA Paralegal Specialist, Civil Division, USAO DDC), and the EOUSA assigned it a
tracking number, Request No. 09-1701, see id., Ex. O (May 18, 2009 letter from W.G. Stewart
II) at 1. The EOUSA also closed this request because the plaintiff had not submitted proof of his
identity. Id., Ex. O at 1-2. Upon receipt of the plaintiff’s certificate of identity, and upon review
of the request, EOUSA staff determined that the request, assigned Request No. 09-2392, was a
duplicate, and closed it administratively. Id., Luczyinski Decl. ¶¶ 18-19.
B. Request to the Federal Bureau of Investigation (“FBI”)
In January 2009, the plaintiff submitted a FOIA request to the FBI’s Washington, D.C.
field office. Compl. at 6. He sought the following information:
any and all records, information, reports or other files that relate to
me specifically and/or make reference to me indirectly in regards to
a homicide that occurred on or about May 14, 1992, in the
Northeastern secture [sic] of Washington, DC, at about 1:30 AM.
The victim’s name is LEWIS McCLAIN, but this request should not
be construed as requesting information of [a] personal nature related
to Mr. McCLAIN. I was tried and convicted of Mr. McCLAIN’s
murder in the Superior Court for the District of Columbia. This
request is made to discover any evidence that may serve to exonerate
me of Mr. McCLAIN’s death, or serve to support my post-conviction
litigation.
4
Def.’s Mem., Declaration of Dennis J. Argall (“Argall Decl.”), Ex. FBI-A (FOIA Request). The
field office forwarded the request to FBI Headquarters (“FBIHQ”) for processing. Id., Ex. FBI-
B (February 4, 2009 letter from D.M. Hardy, Section Chief, Record/Information Dissemination
Section, Records Management Division, FBIHQ). FBIHQ staff assigned the request a tracking
number, FOIPA No. 1125838-000, id., and on April 30, 2009, the agency released 24 pages of
records in part, after having redacted certain information under FOIA Exemptions 6 and 7(C),
id., Ex. FBI-C at 1. These records originated from Washington Field Office file 88A-WF-
182216. Id. at 2.
II. DISCUSSION
A. Summary Judgment Standard of Review
The Court will grant a motion for summary judgment if the pleadings, the discovery and
disclosure materials on file, together with any affidavits or declarations, 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). 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). “[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 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 his own 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 or
answer with conclusory allegations of an affidavit,” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
5
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 quotation marks omitted).
In a FOIA case, the Court may grant summary judgment based on information provided
in an agency’s affidavits or declarations when they “describe 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 nor by evidence of agency bad faith.” Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a
presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the
existence and discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d
1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771
(D.C. Cir. 1981)).
“In opposing a motion for summary judgment or cross-moving for summary judgment, a
FOIA plaintiff must offer more than conclusory statements.” Schoenman v. FBI, 573 F. Supp.
2d 119, 134 (D.D.C. 2008) (citations omitted). Rather, “a plaintiff pursuing an action under
FOIA must establish that either: (1) the Vaughn index does not establish that the documents
were properly withheld; (2) the agency has improperly claimed an exemption as a matter of law;
or (3) the agency has failed to segregate and disclose all nonexempt material in the requested
documents.” Id. (citations omitted).
B. Searches for Records Responsive to the Plaintiff’s FOIA Requests
“An agency fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-
6
Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of
State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. U.S. Dep’t of Justice, 23 F.3d
548, 551 (D.C. Cir. 1994). To meet its burden, the agency may submit affidavits or declarations
that explain in reasonable detail the scope and method of the agency’s search. Perry v. Block,
684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or
declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127.
However, if the record “leaves substantial doubt as to the sufficiency of the search, summary
judgment for the agency is not proper.” Truitt, 897 F.2d at 542.
1. The EOUSA’s Search
“Each United States Attorney’s Office maintains the case files for criminal matters
prosecuted by that office.” Def.’s Mem., Luczynski Decl. ¶ 20. Because the plaintiff had been
prosecuted in the District of Columbia, the EOUSA forwarded Request No. 08-869 to the FOIA
Coordinator at the USAO DDC. Id.; Def.’s Mem., Ex. Q (“Dennis Decl.”) ¶¶ 1, 3.
The USAO DDC “has a computerized docketing/case management system known as
Master Index System (MI [System]) . . . [, which] allows the user to search all USAO matters
using a specific name.” Def.’s Mem., Ex. Q (“Dennis Decl.”) ¶ 4. “The MI [S]ystem is capable
of cross-referencing other related cases if such related case information is entered into the
system.” Id. Using variations of the plaintiff’s name, his date of birth and criminal case number
as search terms, a search of the MI System and of criminal case records stored at the Federal
Records Center yielded the case file for criminal case F-8825-92. Id. ¶ 5; see id., Ex. USAO
DDC-A (Certification of Search executed on February 27, 2009).
The plaintiff counters that the EOUSA fails to “explain away the fact that in over seven
7
years the [p]laintiff has got nothing but 26 pages of heavily redacted documents, eight FOIA
case file numbers, and a big headache.” Plaintiff’s Pro Se Opposition to the Defendants’ Motion
for Summary Judgment (“Pl.’s Opp’n”) at 11-12. He attributes the extensive delay in responding
to his FOIA request, and the confusing assignment of multiple tracking numbers to what he
considered a single FOIA request, to the agency’s bad faith. See generally id. at 7-11. And he
further opines that “[t]he only thing the evidence in this case establishes is that the EOUSA
reasonably calculated to obstruct, empede [sic], and hinder the [p]laintiff’s access to documents
he’s entitled to have under the FOIA.” Id. at 12.
Notwithstanding the plaintiff’s understandable impatience and exasperation with the
EOUSA’s delay in responding to his FOIA request, the plaintiff points to no evidence in the
record to undermine the credibility of the defendant’s supporting affidavits regarding the scope
and method of the search conducted by the USAO DDC. On this record, the Court concludes
that the methods by which the EOUSA and the USAO DDC staff searched for responsive
records were reasonable under the circumstances. The plaintiff’s obvious mistrust after waiting
nearly seven years for a substantive response to his FOIA requests, absent support for his
allegations of agency bad faith, does not render the searches inadequate. See, e.g., Judicial
Watch, Inc. v. U.S. Dep’t of Health & Human Servs., 27 F. Supp. 2d 240, 244 (D.D.C. 1998)
(concluding that the “plaintiff’s speculation as to the trustworthiness of the Clinton
administration and [the agency’s] failure to release documents that plaintiff apparently expected
to be released is insufficient as a matter of law to defeat defendant’s motion for summary
judgment as to the adequacy of the FOIA search”).
2. The FBI’s Search
8
With its Central Records System (“CRS”), the FBI maintains “administrative, applicant,
criminal, personnel, and other files” acquired and compiled in the course of conducting “its
mandated law enforcement responsibilities.” Def.’s Mem., Argall Decl. ¶ 12. The CRS is
organized into a numerical sequence of files which are categorized according to subject matter,
and a file’s subject matter “may relate to an individual, organization, company, publication,
activity, or foreign intelligence matter.” Id. “Certain records in the CRS are maintained at
FBIHQ,” while others are maintained at the pertinent field office. Id.The CRS is accessed through the use of alphabetically arranged General Indices. Id. ¶
13. There are two categories of General Indices: “main” entries and “reference” entries. Id. The
former “carr[y] the name corresponding with a subject of a file contained in the CRS,” and the
latter (also known as cross-references) “generally [are] only a mere mention or reference to an
individual . . . or other subject matter[] contained in a document located in another ‘main’ file on
a different subject matter.” Id. The FBI “uses the CRS to conduct searches that are likely to
yield documents responsive to FOIA and Privacy Act requests,” and such searches are conducted
using the Automated Case Support System (“ACS System”). Id. ¶ 12.
The CRS System “cannot electronically query the case files for data, such as an
individual’s name or social security number,” and therefore “the required information is
duplicated and moved to the ACS [System] so that it can be searched.” Def.’s Mem., Argall
Decl. ¶ 15. The “ACS [System] consists of three integrated, yet separately functional, automated
applications that support case management functions for all FBI investigative and administrative
cases.” Id. ¶ 16. These three applications are Investigative Case Management (“ICM”),
Electronic Case File (“ECF”), and Universal Index (“UNI”). Id. The ICM allows for the
9
opening, assignment, and closing of investigative and administrative cases, and for the
assignment and tracking of leads. Id. ¶ 16(a). When a case is opened, it is assigned a Universal
Case File Number which is used by the FBIHQ and all field offices conducting or assisting in an
investigation. Id. The first three digits of the assigned number correspond to the classification
for the type of investigation; the next characters of the number (which are actually letters)
designate the field office of origin; and the last series of digits comprising the number denote the
individual case file number for a particular investigation. Id.
The ECF “is the central electronic repository for the FBI’s official text-based
documents,” id. ¶ 16(b), and UNI provides “a complete subject/case index to all investigative
and administrative cases,” id. ¶ 16(c). The investigative Special Agent assigned to work on an
investigation, the Supervisory Agent in the field office conducting the investigation, and the
Supervisory Agent at FBI headquarters determine whether to index names other than by subjects,
suspects, and victims. Id. ¶ 17. Only information deemed “pertinent, relevant, or essential for
future retrieval” is indexed. Id. Otherwise, FBI files “would . . . be merely archival in nature.”
Id. Thus, “the General Indices to the CRS files are the means by which the FBI can determine
what retrievable information, if any, the FBI may have in its CRS files on a particular subject
matter or individual.” Id.
Notwithstanding the FBI’s policy “to search for and identify only ‘main’ files responsive
to FOIA/Privacy Act requests at the initial stage,” FBI staff also “conducted a second search of
the CRS to locate cross-references responsive to [the] plaintiff’s request.” Def.’s Mem., Argall
Decl. ¶ 18. Using variations of the plaintiff’s name as search terms, the search located “main file
88A-WF-182216 (HQ) as potentially responsive.” Id. Also located were “four files in which the
10
plaintiff is mentioned as a cross-reference only,” id., and the FBI has processed three of these
cross-reference files. Id. “The fourth cross-reference file consists of three pages which
originated within another federal government agency,” id., the Federal Bureau of Prisons
(“BOP”), id. ¶ 19. The FBI referred these three pages to the BOP for its direct response to the
plaintiff’s FOIA request. Id.
Plaintiff raises no particular objection to the FBI’s search for responsive records.
However, he notes that neither declaration indicates that the declarant personally conducted a
search, or that each declaration is based on the declarant’s personal knowledge of the handling of
his FOIA requests. Pl.’s Opp’n at 15-16. In this case, however, each declarant has stated his or
her familiarity with the component’s procedures for handling FOIA and Privacy Act requests,
and each declaration is based on the declarant’s review of the component’s official files. See
Def.’s Mem., Luczynski Decl. ¶¶ 2-3, Dennis Decl. ¶ 2, & Argall Decl. ¶ 3. The Court may
accept the declaration of a person who did not conduct the search itself “if in his declaration, [he]
attests to his personal knowledge of the procedures used in handling [a FOIA] request and his
familiarity with the documents in question.” Barnard v. Dep’t of Homeland Sec., 531 F. Supp.
2d 131, 138 (D.D.C. 2008) (internal quotation marks and citations omitted). Thus, the declarant
need not have conducted the search himself. See Willis v. U.S. Dep’t of Justice, 581 F. Supp. 2d
57, 66 (D.D.C. 2008) (noting that an agency’s supporting “affidavits may be submitted by an
official who coordinated the search, and need not be from each individual who participated in the
search.”).
On this record the Court finds that the FBI has established that its search for records
responsive to the plaintiff’s FOIA request satisfies the requirements of the FOIA.
11
C. Analysis Under the Privacy Act
In relevant part, the Privacy Act provides:
The head of any agency may promulgate rules . . . to exempt any
system of records within the agency from [certain parts of the Act] .
. . if the system of records is . . . maintained by an agency or
component thereof which performs as its principal function any
activity pertaining to the enforcement of criminal laws, including
police efforts to prevent, control, or reduce crime or to apprehend
criminals, and the activities of prosecutors, courts, correctional,
probation, pardon, or parole authorities, and which consists of (A)
information compiled for the purpose of identifying individual
criminal offenders and alleged offenders and consisting only of
identifying data and notations of arrests, the nature and disposition of
criminal charges, sentencing, confinement, release, and parole and
probation status; (B) information compiled for the purpose of a
criminal investigation, including reports of informants and
investigators, and associated with an identifiable individual; or (C)
reports identifiable to an individual compiled at any stage of the
process of enforcement of the criminal laws from arrest or indictment
through release from supervision.
5 U.S.C. § 552a(j)(2).
“The EOUSA’s Criminal Case Files (Justice/USA-007) are contained in a Privacy Act
System of Records,” and “the Attorney General has promulgated rules exempting these records
from the Privacy Act’s access provisions as authorized by 5 U.S.C. § 552a(j)(2).” Def.’s Mem.,
Luczynski Decl. ¶ 23; see 28 C.F.R. § 16.81(4) (2009). Similarly, the FBI’s CRS “is a
component of the FBI’s CRS Privacy Act Records System,” and its records “are exempt from
disclosure pursuant to 5 U.S.C. § 552a(j)(2), in conjunction with 28 C.F.R. § 16.96 (2003).”
Def.’s Mem., Argall Decl. ¶ 25. However, both the EOUSA and the FBI processed “the
documents responsive to the plaintiff’s request . . . under the access provisions of the FOIA to
achieve maximum disclosure.” Id.D. FOIA Exemptions
12
The DOJ bears the burden of justifying a decision to withhold records or portions of
records that are responsive to a FOIA request. See 5 U.S.C. § 552(a)(4)(B). However, to
establish justification for the withholding of responsive records the agency’s declarants must
describe the records withheld, and show that the records fall within the claimed exemption or
exemptions. See Canning v. U.S. Dep’t of Justice, 848 F. Supp. 1037, 1043 (D.D.C. 1994).
1. Exemption 2
Exemption 2 shields from disclosure information that is “related solely to the internal
personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). The phrase “personnel rules
and practices” is interpreted to include not only “minor employment matters” but also “other
rules and practices governing agency personnel.” Crooker v. Bureau of Alcohol, Tobacco and
Firearms, 670 F.2d 1051, 1056 (D.C. Cir. 1981) (en banc). The “information need not actually
be ‘rules and practices’ to qualify under [E]xemption 2, as the statute provides that matter
‘related’ to rules and practices is also exempt.” Schwaner v. Dep’t of the Air Force, 898 F.2d
793, 795 (D.C. Cir. 1990).
Exemption 2 applies if the information that is sought meets two criteria. First, such
information must be “used for predominantly internal purposes.” Crooker, 670 F.2d at 1073; see
Nat’l Treasury Employees Union v. U.S. Customs Serv., 802 F.2d 525, 528 (D.C. Cir. 1986).
Second, the agency must show either that “disclosure may risk circumvention of agency
regulation,” or that “the material relates to trivial administrative matters of no genuine public
interest.” Schwaner, 898 F.2d at 794 (citations omitted).
“Predominantly internal documents the disclosure of which would risk circumvention of
agency statutes and regulations are protected by the so-called ‘high 2’ exemption.” Schiller v.
13
NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992). “High 2” exempt information is “not limited . . .
to situations where penal or enforcement statutes could be circumvented.” Id. at 1208. If the
material at issue merely relates to trivial administrative matters of no genuine public interest, it is
deemed “low 2” exempt material. See Founding Church of Scientology of Washington, D.C.,
Inc. v. Smith, 721 F.2d 828, 830-31 n.4 (D.C. Cir. 1983).
The FBI has redacted from 57 pages of records “the secure website address of the FBI’s
Law Enforcement Online (“LEO”) computer system.” Def.’s Mem., Argall Decl. ¶ 29. The FBI
declarant describes the LEO system as “a controlled-access communications and information-
sharing data repository” which “provides an Internet-accessible focal point for certain electronic
communications and information sharing for the international, federal, state, local and tribal law
enforcement agencies.” Id. Further, the declarant states that the website addresses “relate to the
internal practices of the FBI in that they are utilized by FBI personnel during the performance of
their jobs.” Id. Lastly, the declarant states that disclosure of the secure website address “could
impede the FBI’s effectiveness.” Id. Plaintiff raises no objection to the FBI’s decision to
withhold information under Exemption 2. See Pl.’s Opp’n at 13.
The declaration establishes that the website address falls within the scope of Exemption
2, and the Court concludes that this information properly has been withheld.
2. Exemption 6
Exemption 6 of the FOIA protects from disclosure “personnel and medical files and
similar files the disclosure of which would constitute a clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6). The FBI’s practice “is to assert Exemption [6] in conjunction
with Exemption [7(C)],” Def.’s Mem., Argall Decl. ¶ 30 n.5, and review of the redacted records
14
shows that the FBI has invoked the exemptions in conjunction with each other in all instances
related to the plaintiff’s FOIA request, see id., Ex. FBI-G (Vaughn index).5 As will be discussed
in the next section, the Court concludes that all the records responsive to the plaintiff’s request
were compiled for law enforcement purposes. The Court will therefore analyze the withholding
of this law enforcement related information under Exemption 7(C), and it need not determine
whether this same information properly has been withheld under Exemption 6.6 See Simon v.
Dep’t of Justice, 980 F.2d 782, 785 (D.C. Cir. 1992).
3. Exemption 7
Exemption 7 of the FOIA protects from disclosure “records or information compiled for
law enforcement purposes,” but only to the extent that disclosure of such records would cause an
enumerated harm. 5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982).
a. Law Enforcement Records
In order to withhold materials properly under Exemption 7, an agency must establish that
the records at issue were compiled for law enforcement purposes, and that the material satisfies
the requirements of one of the subparts of Exemption 7. See Pratt v. Webster, 673 F.2d 408,
413 (D.C. Cir. 1982). In assessing whether records are compiled for law enforcement purposes,
the “focus is on how and under what circumstances the requested files were compiled, and
whether the files sought relate to anything that can fairly be characterized as an enforcement
5
In addition, the FBI has redacted Social Security numbers and dates of birth
wherever they appear in these records pursuant to Rule 5.2 of the Federal Rules of Civil
Procedure and to Local Civil Rule 5.4(f). See generally Def.’s Mem., Argall Decl., Ex. FBI-G.
6
Similarly, where the EOUSA has withheld information under Exemption 7(F) in
conjunction with Exemption 7(C), see Def.’s Mem., Luczynski Decl. ¶¶ 44-45, the Court will
conduct its analysis under Exemption (C) only.
15
proceeding.” Jefferson v. Dep’t of Justice, 284 F.3d 172, 176-77 (D.C. Cir. 2002) (citations and
internal quotations omitted).
Records responsive to the plaintiff’s FOIA request to the FBI were generated when the
District of Columbia Metropolitan Police Department (“MPD”) requested assistance from the
FBI’s Washington Field Office (“WFO”) in apprehending the plaintiff, for whom the Superior
Court of the District of Columbia had issued a felony arrest warrant “for a shooting death which
had occurred in Washington, D.C.” Def.’s Mot., Argall Decl. ¶ 5. On August 20, 1992, “[t]he
plaintiff was arrested by an FBI/MPD Joint Fugitive Apprehension Team.” Id. Some of the
responsive records “pertain to the FBI’s investigation of [the] plaintiff while he was a fugitive
from justice” while others “pertain to an FBI investigation at a prison facility, and to entry of the
plaintiff’s criminal history into the FBI’s [Violent Criminal Apprehension Program (“ViCAP”)]
database.” Id. ¶ 33; see also id. ¶¶ 27-28.
The United States Attorney for the District of Columbia prosecuted the plaintiff’s
criminal case. See Def.’s Mem., Luczynski Decl. ¶ 24. The EOUSA records responsive to the
plaintiff’s FOIA request are maintained in a criminal case file captioned United States v. Marvin
Holt, No. F-8825-92. Id. ¶ 21. This “criminal case file pertains to the criminal investigation of
[the plaintiff] for violation of federal controlled substance laws, for felony murder, and for
various firearms violations,” and the records therein “were complied for criminal law
enforcement purposes by the USAO DDC, which performs as its principal function activities
related to the enforcement of criminal laws.” Id. ¶ 24.
As for the BOP, it is considered a law enforcement agency, see Quinto v. U.S. Dep’t of
Justice, No. 09-2068, 2010 WL 1875623, at *3 (D.D.C. May 11, 2010), and its declarant
16
explains that its records responsive to the plaintiff’s FOIA request “pertained to the investigation
of an inmate-on-inmate assault,” Def.’s Mem., Declaration of Ron Hill ¶ 4. It appears that these
records are created in connection with the BOP’s responsibility to “protect[] inmates, staff, and
the community,” Butler v. Fed. Bureau of Prisons, No. 05-643, 2005 WL 3274573, at * 3
(D.D.C. Sept. 27, 2005), and, therefore relate to the enforcement of federal law.
Both of these two DOJ components readily meet the threshold for Exemption 7 status,
i.e., that the records responsive to the plaintiff’s FOIA requests were compiled for law
enforcement purposes. The records, therefore, fall within the scope of Exemption 7.
b. Public Domain Doctrine
Before proceeding with its analysis of the withholding of the law enforcement records,
the Court will first address the plaintiff’s assertion that all the records withheld under Exemption
7 must be released “because the records have been released into the public domain through
judicial proceedings and media outlets.” Pl.’s Opp’n at 13. Under the public domain doctrine,
records which otherwise may be exempt from disclosure under the 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). “[W]here information requested ‘is truly public, then enforcement of
an exemption cannot fulfill its purposes.’” Id. (quoting Niagara Mohawk Power Corp. v. U.S.
Dep’t of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999)). In order to obtain the records he requests,
the plaintiff “has the burden of showing that there is a permanent public record of the exact
[records] he wishes.” Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1280 (D.C. Cir. 1992); see
Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983).
As support for his public domain doctrine argument, the plaintiff points only to his own
17
affidavit, which states that “the government witnesses testified in open court to all of the facts
and circumstances related to the criminal case,” Plaintiff’s Pro Se Opposition to the Defendants’
Motion for Summary Judgment (“Pl.’s Opp’n”), Affidavit of Marvin Leon Holt ¶ 14, and that
“local newspapers . . . published several news articles related to [his] murder and drug charges
trial,” id. ¶ 15. The plaintiff’s affidavit does not suffice, and the plaintiff presents no other
document or other evidence to meet his “initial burden of pointing to specific information in the
public domain that appears to duplicate that being withheld.” Afshar, 702 F.2d at 1130.
Accordingly, the Court concludes that disclosure is not warranted under the public domain
doctrine. See Lieff, Cabraser, Heimann & Bernstein, LLP v. U.S. Dep’t of Justice, No.
09-00157, 2010 WL 1063785, at *5 (D.D.C. Mar. 24, 2010) (rejecting public domain doctrine
argument where the plaintiff’s “several exhibits . . . including news reports, corporate statements,
and a court filing” were “essentially devoid of any specific explanation of the overlap between
the information in these exhibits and in the records [the plaintiff] seeks”).
c. Exemption 7(C)7
Exemption 7(C) protects from disclosure information in law enforcement records that
“could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
7
The BOP has withheld “the identities and personal information about third party
individuals.” Def.’s Mem., Decl. of Ron Hill (“Hill Decl.”) ¶ 5. Its declarant merely parrots the
language of the FOIA, and it is not clear from review of the redacted records themselves the
basis for withholding certain information appearing on the second of the three pages. A
substantial portion of the information on that page has been redacted without any notation on
each redacted portion identifying the exemption or exemptions claimed. Morever, insofar as the
BOP relies on Exemption 7(C) in conjunction with Exemption 7(F), the declaration offers little
explanation as to how disclosure “could reasonably be expected to endanger the life or physical
safety of any individual.” 5 U.S.C. § 552(b)(7)(F). For these reasons, the Court will deny in part
the defendant’s summary judgment motion.
18
U.S.C. § 552 (b)(7)(C). In determining whether this exemption applies to particular material, the
Court must balance the interest in privacy of individuals mentioned in the records against the
public interest in disclosure. See Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993).
The privacy interest at stake belongs to the individual, not the government agency, see U.S.
Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763-65 (1989);
Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989) (noting
individual’s significant privacy interest “in avoiding the unlimited disclosure of his or her name
and address”), and “individuals have a strong interest in not being associated unwarrantedly with
alleged criminal activity.” Stern v. FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984). “[T]he only public
interest relevant for purposes of Exemption 7(C) is one that focuses on ‘the citizens’ right to be
informed about what their government is up to.’” Davis, 968 F.2d at 1282 (quoting Reporters
Comm., 489 U.S. at 773). It is the requester’s obligation to articulate a public interest sufficient
to outweigh an individual’s privacy interest, and the public interest must be significant. See
Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
i. Law Enforcement Agents, Officers and Support Personnel
The EOUSA has withheld under Exemption 7(C) “the names, signatures and badge
numbers of local law enforcement officers and support employees who were responsible for
conducting, supervising, and/or maintaining the investigative activities reported in this
investigation.” Def.’s Mem., Luczynski Decl. ¶ 28. The EOUSA declarant explains that any
publicity “regarding any particular investigation conducted by a state or federal law enforcement
agent may seriously impair [his or her] effectiveness in conducting future investigations.” Id.He notes that these agents “conduct official inquiries into violations of various criminal statutes
19
and come into contact with all strata of society” whenever they, for example, “conduct searches
and make arrests, both of which result in reasonable, but . . . serious disruptions in the lives of
individuals.” Id. The declarant opines that these individuals might “carry a grudge which may
last for years, and [may] seek revenge on the agents involved in the investigation.” Id. He
therefore concludes that disclosure of their identities and the publicity associated with such
disclosure “could trigger hostility towards the [agents].” Id.Similarly, under Exemption 7(C) the FBI has withheld the names of and identifying
information (such as Social Security numbers) about the Special Agents “responsible for
conducting, supervising, and/or maintaining the investigative activities reported in the
documents concerning [the] plaintiff and others,” Def.’s Mem., Argall Decl. ¶ 34, in addition to
local law enforcement employees, id. ¶ 35, and commercial employees who assisted the FBI by
entering data into the ViCAP database, id. ¶ 38. The FBI declarant explains that FBI Special
Agents are not assigned to a particular investigation by choice, and that “[p]ublicity (adverse or
otherwise) regarding any particular investigation to which they have been assigned may
seriously prejudice their effectiveness in conducting other investigations.” Id. ¶ 34.
Withholding their identities under Exemption 7(C), the declarant asserts, protects them “from
unnecessary, unofficial questioning as to the conduct of this or other investigations, whether or
not they are currently employed by the FBI,” and protects them from any hostility which may be
triggered by the disclosure of their identities. Id. The declarant applies this same rationale to
local law enforcement employees, explaining that disclosure of their identities “could subject
them as individuals to unnecessary and unwelcome harassment” or otherwise could make them
“prime target[s] for compromise if their identities were known.” Id. ¶ 35.
20
Redaction of the names of federal, state and local law enforcement personnel and support
staff under circumstances similar to those described here has routinely been upheld. See Lesar v.
U.S. Dep’t of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980) (finding legitimate interest in
concealing the identities of government officials where disclosure “could subject them to
annoyance or harassment in either their official or private lives”); Pray v. Dep’t of Justice, 902
F. Supp. 1, 3 (D.D.C. 1995) (finding that “animosity or grudges toward special agents” resulting
from release of information outweighed any possible benefit from disclosure), aff’d in relevant
part, 1996 WL 734142 (D.C. Cir. Nov. 20, 1996). In accordance with these rulings, the Court
concludes that the EOUSA and the FBI properly withheld the names of and identifying
information about federal and local law enforcement officers and support personnel under
Exemption 7(C).
ii. Other Third Parties Mentioned in Law Enforcement Records
The EOUSA has withheld “the name[s] and/or identifying information pertaining to
individuals who assisted the government in its investigation and prosecution of [the plaintiff] by
providing information concerning the murder investigation,” Def.’s Mem., Luczynski Decl. ¶ 30,
“the names [and] home telephone numbers of those [individuals] who are only incidentally
mentioned in these records,” id. ¶ 33, as well as “the identities and/or personal and non-public
information concerning third-party individuals in whom federal and/or local law enforcement
agencies had an investigative interest,” id. ¶ 34. Likewise, the FBI withholds the “name,
address, telephone number, date of birth and nickname of a victim of a crime,” Def.’s Mem.,
Argall Decl. ¶ 36, the names of and identifying information about third parties of investigative
interest either to the FBI or to other law enforcement agencies, id. ¶ 37, and, lastly, “the name
21
and title of a commercial employee who cooperated and provided assistance to the FBI by
entering data into the ViCAP database,” id. ¶ 38.
Exemption 7(C) recognizes that the stigma of being associated with any law enforcement
investigation affords broad privacy rights to those who are connected in any way with such an
investigation unless a significant public interest exists for disclosure. Reporters Comm. for
Freedom of the Press, 489 U.S. at 773-775; SafeCard Servs., 926 F.2d at 1205-06. The
exemption “takes particular note of the strong interest of individuals, whether they be suspects,
witnesses, or investigators, in not being associated unwarrantedly with alleged criminal activity.”
Dunkelberger v. U.S. Dep’t of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990) (internal quotation
marks omitted). Accordingly, “[t]he D.C. Circuit has consistently held that Exemption 7(C)
protects the privacy interests of all persons mentioned in law enforcement records, including
investigators, suspects, witnesses, and informants.” Fischer v. U.S. Dep’t of Justice, 596 F.
Supp. 2d 34, 47 (D.D.C. 2009) (citing Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661
(D.C. Cir. 2003)).
The plaintiff does not assert, and the Court cannot identify, a public interest of such
significance that it outweighs the privacy interests of the third parties mentioned in the records
responsive to the plaintiff’s FOIA requests. Furthermore, his assertion that “the passage of time
has substantially eroded the records[’] law enforcement exemption status,” Pl.’s Opp’n at 14, is
unavailing, because an individual’s privacy interest does not diminish with the “passage of
time.” Fitzgibbon v. CIA, 911 F.2d 755, 768 (D.C. Cir. 1990).
For all of the above reasons, the Court finds that the DOJ’s decision to withhold the
names of and identifying information about law enforcement officers, support personnel,
22
witnesses, persons of investigative interest, and other third parties whose names happen to
appear in these law enforcement records is proper. See, e.g., King v. U.S. Dep’t of Justice, No.
08-1555, 2010 WL 935420, at *4 (D.D.C. Mar. 17, 2010) (upholding nonproduction of “the
names and other identifying information of third parties, including suspects, co-defendants, and
confidential sources of information”); Sellers v. U.S. Dep’t of Justice, No. 08-0840, 2010 WL
545939, at *7 (D.D.C. Feb. 17, 2010) (withholding the identities of FBI Special Agents who
testified at the plaintiff’s criminal trial held proper); Kurdyukov v. U.S. Coast Guard, 657 F.
Supp. 2d 248, 256 (D.D.C. 2009) (sustaining the withholding of “[t]he names and personal
information of the U.S. Coast Guard crew members, which may include addresses, passport
numbers and other personal data” (internal quotation marks omitted)).
d. Exemption 7(D)
Exemption 7(D) protects from disclosure those records or information compiled for law
enforcement purposes that:
could reasonably be expected to disclose the identity of a confidential
source . . . [who] furnished information on a confidential basis, and,
in the case of a record or information compiled by criminal law
enforcement authority in the course of a criminal investigation. . .,
information furnished by a confidential source.
5 U.S.C. § 552(b)(7)(D). There is no general “presumption that a source is confidential within
the meaning of Exemption 7(D) whenever [a] source provides information [to a law enforcement
agency] in the course of a criminal investigation.” U.S. Dep’t of Justice v. Landano, 508 U.S.
165, 181 (1993). Rather, a source’s confidentiality must be determined on a case-by-case basis,
id. at 179-80, and a presumption of confidentiality arises only in narrowly defined
circumstances, id. at 181 (“For example, when circumstances such as the nature of the crime
23
investigated and the witness’ relation to it support an inference of confidentiality, the
Government is entitled to a presumption.”). Moreover, as the District of Columbia Circuit held,
“[a] source is confidential within the meaning of [E]xemption 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) (quoting Landano, 508 U.S. at 170-74).
i. Eyewitnesses to the Murder for which the Plaintiff was Convicted
According to the EOUSA it has withheld under Exemption 7(D) “information provided
by eyewitnesses to the murder for which [the plaintiff] was prosecuted” in circumstances under
“which the assurance of confidentiality could be reasonably inferred.” Def.’s Mem., Luczynski
Decl. ¶ 39. These sources are not named, and they appear in the EOUSA records only as “W-1”
and W-2.” Id. ¶ 41. They “had direct contact with the subject of the criminal investigation” and
thus were able to “provide[] details as to their criminal conduct,” in addition to supplying
detailed information about the murder for which the plaintiff has been convicted. Id. The
EOUSA declarant states that these witnesses “would likely become targets of harassment or
other forms of reprisal” if their identities or the information they provided were released. Id. ¶
37. Moreover, he states that disclosure “would likely produce a disastrous impact upon the
ability to ever obtain . . . investigative information again, as it would create a chilling effect upon
the free-flow of information essential to resolve criminal prosecutions.” Id.
Recognizing the “the violence and danger that accompany the cocaine trade,” Mays v.
Drug Enforcement Admin., 234 F.3d 1324, 1329-30 (D.C. Cir. 2000), the District of Columbia
Circuit has found that “a source of information about a conspiracy to distribute cocaine typically
24
faces a sufficient threat of retaliation that the information he provides should be treated as
implicitly confidential,” id. at 1330 (approving the withholding of the identity of a source who
supplied information about a conspiracy to distribute crack and powder cocaine). Similarly,
courts have found that disclosure of the identities of or information provided by confidential
sources is not required in circumstances where the subject of the investigation is known to have
committed serious or violent offenses and where the sources are at risk of retaliation, harassment
or bodily harm. See Williams, 69 F.3d at 1159-60 (concluding that sources who spoke to the FBI
regarding a nationalist organization “suspected . . . of committing . . . rebellion or insurrection,
seditious conspiracy, and advocating the overthrow of the government,” and had demonstrated
its “willingness to use violence against its enemies,” did so under an implicit assurance of
confidentiality); Shores v. FBI, 185 F. Supp. 2d 77, 84 (D.D.C. 2002) (approving the
withholding of the identities of and identifying information about three cooperating witnesses
who had knowledge of the murder for which plaintiff was convicted). It is equally reasonable in
this case to conclude that W-1 and W-2 provided information to law enforcement with an
expectation that their identities would not be disclosed. This information is therefore properly
withheld under Exemption 7(D).
ii. Confidential Source Material in the ViCAP File
The FBI withholds certain “confidential source material contained in the ViCAP file, as
well as in a reference file concerning a Racketeering Enterprise Investigation (“REI”) of gang
activity.” Def.’s Mem., Argall Decl. ¶ 40. Here, the FBI declarant explains that a local law
enforcement agency supplied information to ViCAP under an express assurance of
confidentiality, as is underscored by the FBI’s Rules of Behavior for the ViCAP Web. Id. These
25
rules clearly state that the ViCAP Web database is a confidential system, the unauthorized access
to which is prohibited. Id. Moreover, the declarant states that the FBI “solicits and receives
information regularly from state, local, and foreign agencies and authorities,” and that
cooperation from these identities depends on a “mutual understanding that the information
provided by [these sources] will be held in confidence by the FBI, and not released pursuant to
FOIA and Privacy Act requests.” Id.Where a law enforcement agency relies on express assurances of confidentiality to justify
its decision to withhold information under Exemption 7(D), it must offer “probative evidence
that the source did in fact receive an express grant of confidentiality.” Campbell v. U.S. Dep’t
of Justice, 164 F.3d 20, 34 (D.C. Cir. 1998) (quoting Davin v. U.S. Dep’t of Justice, 60 F.3d
1043, 1061 (3d Cir. 1995)). Such evidence may take many forms, such as notations on the face
of the withheld document, an official’s personal knowledge about the source, a statement from
the source, or documents discussing practices or policies for dealing with the source at issue or
similarly situated sources. Id. In addition to individual sources, a law enforcement agency itself
may be a confidential source for purposes of Exemption 7(D). See, e.g., Founding Church of
Scientology of Washington, D.C., Inc. v. Levi, 579 F. Supp. 1060, 1063 (D.D.C. 1982)
(approving the withholding from law enforcement records the identities of state, local and
foreign law enforcement agencies), aff’d, 721 F.2d 828 (D.C. Cir. 1983); Thomas v. U.S. Dep’t
of Justice, 531 F. Supp. 2d 102, 111 (D.D.C. 2008) (approving the withholding of a report
provided to the EOUSA by the Metropolitan Police Department which stated, “[t]his report is the
property of the Metropolitan Police Department. Neither it nor its contents may be disseminated
to unauthorized personnel.”); Meserve v. U.S. Dep’t of Justice, No. 04-1844, 2006 WL 2366427,
26
at *10 (D.D.C. Aug. 14, 2006) (concluding that the State of Ohio provided information regarding
the plaintiff’s criminal history under an implied assurance of confidentiality); see also Code v.
FBI, No. 95-1892, 1997 WL 150070, at *7 (D.D.C. Mar. 26, 1997) (approving the withholding
under Exemption 7(D) of information provided by local law enforcement authorities to the FBI’s
National Center for the Analysis of Violent Crime as a part of its ViCAP program).
The plaintiff raises no specific objection to the withholding of information under
Exemption 7(D). Accordingly, based on the defendant’s supporting declarations, the Court
concludes that both the EOUSA and the FBI properly have withheld the information described
above under Exemption 7(D).
e. Exemption 7(E)
Exemption 7(E) protects from disclosure law enforcement records “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). Courts have held that information
pertaining to law enforcement techniques and procedures properly is withheld under Exemption
7(E) where disclosure reasonably could lead to circumvention of laws or regulations. See, e.g.,
Morley v. CIA, 453 F. Supp. 2d 137, 157 (D.D.C. 2006) (approving the withholding of
information pertaining to security clearances and background investigations on the ground that
“disclosure of CIA security clearance and investigatory processes would risk circumvention of
those processes in the future”), rev’d on other grounds, 508 F.3d 1108 (D.C. Cir. 2007); Piper v.
U.S. Dep’t of Justice, 294 F. Supp. 2d 16, 30 (D.D.C. 2003) (approving the withholding of
27
polygraph test information on the ground that disclosure “has the potential to allow a cunning
criminal to extrapolate a pattern or method to the FBI’s questioning technique,” and anticipate or
thwart FBI’s strategy); Fisher v. U.S. Dep’t of Justice, 772 F. Supp. 7, 12 (D.D.C. 1991)
(upholding FBI’s decision to withhold information about law enforcement techniques where
disclosure would impair its future effectiveness and, “within the context of the documents at
issue could alert subjects in drug investigations about techniques used to aid the FBI”), aff’d, 968
F.2d 92 (D.C. Cir. 1992). Moreover, as stated previously, under Exemption 2, so-called “high 2”
exempt information encompasses “[p]redominantly internal documents the disclosure of which
would risk circumvention of agency statutes.” Schiller, 964 F.2d at 1207.
Based on Exemptions 2 and 7(E), the FBI has withheld information contained in a
ViCAP file. Def.’s Mem., Argall Decl. ¶¶ 28, 42; see id., Ex. FBI-G at 29-86 (deleted page
information sheets). The FBI’s Critical Incident Response Group, National Center for Analysis
of Violent Crime, Behavior Analysis Unit’s Violent Criminal Apprehension Program (“ViCAP”)
“is a law enforcement oriented behavioral science and data-processing center designed to
provide assistance to local, state, federal and foreign law enforcement agencies investigating
unusual, bizarre, and/or repetitive violent crimes.” Def.’s Mem., Argall Decl. ¶ 28. “ViCAP
collects, collates, and analyzes crimes of violence, specifically murder,” id., and information it
processes “contains detailed administrative, investigative and behavior-oriented data[,]” such as
“modus operandi, crime scene information, and types of trauma inflicted on the victim,” id. ¶ 42.
The FBI declarant states that information in ViCAP “relates solely to the FBI’s internal
practices” Def.s’ Mem., Argall Decl. ¶ 28, and that ViCAP “is utilized for law enforcement
28
investigations,” id. ¶ 42. He asserts that disclosure of information in the ViCAP file would
“reveal the characteristics and data . . . collected and tracked using this system [and therefore]
could allow offenders to circumvent discovery.” Id. ¶ 28; see id. ¶ 42. Thus, if a criminal knew
the specific information collected and the origins of such information, he or she “would then be
able to avoid detection by modifying or avoiding certain behavior/activities connected with
his/her criminal conduct.” Id. ¶ 28. In addition, the declarant explains that “the FBI will use the
same or similar techniques and/or assistance to bring future investigations to successful
conclusions,” id., and that “release of the ViCAP analytical techniques would reduce their
effectiveness,” id. ¶ 42. According to the declarant, ViCAP’s techniques are not well known to
the public. Id.
Despite these representations, the plaintiff argues that the defendant “does [not] even
attempt to make a showing as required by law,” as it fails “to show that the particular law
enforcement technique or procedure is not generally known to the public” and to “describe the
general nature of the techniques[.]” Pl.’s Opp’n at 14. However, absent a showing by the
plaintiff that rebuts the declarant’s assertion that ViCAP’s techniques are not well known to the
public, the Court presumes that the declaration is made in good faith and therefore accepts the
agency’s representation on this point. In addition, the plaintiff’s assertion that the declarant has
not described generally the nature of the ViCAP techniques, id., is meritless, as the declaration
explains the type of data collected and the purpose of collecting this data.
E. Segregability
If a record contains information that is exempt from disclosure, any reasonably
segregable information must be released after deleting the exempt portions, unless the non-
29
exempt portions are inextricably intertwined with exempt portions. 5 U.S.C. § 552(b); see
Stolt-Nielsen Transp. Group, Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008); Trans-
Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1026-27 (D.C. Cir. 1999).
The Court therefore errs if it “simply approve[s] the withholding of an entire document without
entering a finding on segregability, or the lack thereof.” Powell v. U.S. Bureau of Prisons, 927
F.2d 1239, 1242 n.4 (D.C. Cir. 1991) (quoting Church of Scientology v. Dep’t of the Army, 611
F.2d 738, 744 (9th Cir. 1979)).
The plaintiff argues that the DOJ cannot have disclosed all reasonably segregable
material because so few pages have been released and because so much information on these
pages has been redacted. See Pl.’s Opp’n at 16-17. Unless the Court conducts an in camera
inspection of all the documents deemed responsive to his FOIA requests, the plaintiff states that
he “is compelled . . . to [accept] the Defendants’ bald assertions on face value – something [he]
admittedly has a hard time doing after 7-years of the Defendants’ shenanigans.” Id. at 17.
The Court will deny plaintiff’s request for in camera review. Based on a review of the
defendant’s supporting declarations and exhibits, the Court finds that they adequately “specify in
detail which portions of the document[s] are disclosable and which are allegedly exempt.”
Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973).
III. CONCLUSION
For the reasons outlined above, the Court concludes that the FBI and the EOUSA
conducted reasonable and adequate searches for records responsive to the plaintiff’s multiple
FOIA requests, that these components properly have withheld records or portions of records
under Exemptions 2, 7(C), 7(D), and 7(E), and that they have released all reasonably segregable
30
material. In these respects, the defendant’s summary judgment motion is granted. However,
because the defendant has not established that the BOP has fulfilled its obligations under the
FOIA, its motion is denied in part without prejudice. The defendant will be directed to file a
renewed motion for summary judgment based on additional undisputed facts or by presenting
additional legal arguments. An Order accompanies this Memorandum Opinion.
/s/
REGGIE B. WALTON
United States District Judge
DATE: August 26, 2010
31