Accurso v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
:
ANTHONY ACCURSO, :
:
Plaintiff, :
:
v. : Civil Action No. 19-2540 (CKK)
:
FEDERAL BUREAU OF INVESTIGATION, :
:
Defendant. :
_________________________________________ :
MEMORANDUM OPINION
Plaintiff Anthony Accurso brings this action under the Freedom of Information Act
(“FOIA”), see 5 U.S.C. § 552, against the Federal Bureau of Investigation (“FBI” or
“defendant”), a component of the U.S. Department of Justice. Before the Court is Defendant’s
Motion for Summary Judgment (ECF No. 18). For the reasons discussed below, the Court
GRANTS the motion.1
1
The Court considered the following documents and all their exhibits/attachments:
* Complaint (ECF No. 1, “Compl.”)
* Defendant’s Motion for Summary Judgment (ECF No. 18), particularly the Statement of
Material Facts Not In Genuine Dispute (ECF No. 18-1, “SMF”), Memorandum of Points
and Authorities in Support of Defendant’s Motion for Summary Judgment (ECF No. 18-
2, “Def.’s Mem.”) and the Declaration of Michael G. Seidel (ECF No. 18-3, “Seidel
Decl.”)
* Plaintiff’s Motion in Opposition to Summary Judgment (ECF No. 20, “Pl.’s Opp’n”)
* Defendant’s Reply in Support of Motion for Summary Judgment (ECF No. 22, “Reply”),
including the Amended Vaughn Index (ECF No. 22 at 10-17)
* Plaintiff’s Reply (ECF No. 23, “Pl.’s Surreply”)
1
I. BACKGROUND
“On January 13, [2014], Plaintiff Anthony Accurso pled guilty to Count 1 of the
Indictment, charging him with a violation of 18 U.S.C. § 2252(a)(2), for distribution of child
pornography over the internet, in the U.S. District Court for the Western District of Missouri.”
SMF ¶ 1; see Def.’s Mem., Ex. 2 (Judgment in a Criminal Case) at 1 (ECF No. 18-4 at 17). The
facts underlying the offense were outlined in the Plea Agreement:
On April 29, 2011, a detective with the Platte County Sheriff’s
Office conducted an investigation of individuals sharing child
pornography through internet file sharing programs. The detective’s
attention was drawn to a particular IP address later identified to . . .
Anthony Accurso. On that same date on three separate occasions,
the detective downloaded images that met the definition of child
pornography pursuant to 18 U.S.C. § 2256 . . . .
On September 26, officers executed a search warrant at [plaintiff’s]
residence in Gladstone, [Missouri]. When officers arrived, they
located [plaintiff] in the basement typing on his mobile phone.
[Plaintiff] disregarded law enforcement directives to put down the
device and show officers his hands. [plaintiff] finally stopped
typing on the mobile phone and tossed it aside. Upon examination
of the mobile phone it was discovered that [plaintiff] was trying to
remotely erase files on his hard drive, but miss-typed [sic] the file
path.
During the course of the search, numerous electronic items were
seized. The forensic examination revealed over 15,000 images and
72 videos meeting the definition of child pornography pursuant to
18 U.S.C. § 2256. A substantial number of these images were
located on the hard drives of [plaintiff’s] home-built computer . . . .
Def.’s Mem., Ex. 1 (Plea Agreement) ¶ 3 (ECF No. 18-4 at 2). Plaintiff is serving a 180-month
term of incarceration, SMF ¶ 2, and has been designated to the Federal Correctional Institution in
Seagoville, Texas, see Compl. ¶ 3.
In June 2019, plaintiff submitted a FOIA request to the FBI for records related to the
investigation leading to his criminal prosecution. See SMF ¶ 3. Specifically, plaintiff sought:
2
1) Records relating to the investigation . . . which resulted in
criminal case # 13-06008-01-CR-SJ-HFS in the Western District
of Missouri.
2) Records relating to the search warrant (its application, the
supporting affidavit, and completed and signed warrant) which
was served on my residence on September 26, 2011 in relation
to the above-listed case.
3) Records relating to the actions taken by law enforcement during
the execution of the search warrant listed in item #2 and any
reports generated as part of the execution of that warrant.
4) The analysis (including lists of filenames and corresponding
hashes of any files identified as possible, probable, or actual
child sex abuses images) of the hard disk drives conducted by
the FBI or any of its agents or contracted third parties in relation
to the above-listed case.
Seidel Decl., Ex. A (ECF No. 18-3 at 24).
The FBI assigned the matter a tracking number (1439909-000), SMF ¶ 4, and located 150
pages of responsive records at its Kansas City Field Office, id. ¶ 7; Seidel Decl. ¶ 22. It released
one page in full, released 53 pages in part, and withheld 96 pages in full. SMF ¶ 7.
II. DISCUSSION
A. Summary Judgment in a FOIA Case
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings, . . .
together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks
omitted). To defeat summary judgment, the non-moving party must “designate specific facts
showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted).
The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson
3
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is “genuine” only if a reasonable
fact-finder could find for the non-moving party; a fact is “material” only if it is capable of
affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241
(D.C. Cir. 1987).
When considering a motion for summary judgment under FOIA, the Court must conduct
a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). The Court may grant summary
judgment based on information provided in an agency’s affidavits or declarations when they are
“relatively detailed and non-conclusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991) (citation omitted), and “not controverted by either contrary evidence in the
record [or] by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981). 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.”
Servs., 926 F.2d at 1200 (citation and internal quotation marks omitted).
B. The FBI’s Search for Responsive Records
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.” Ancient Coin
Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (citations and
internal quotation marks omitted). “[T]he adequacy of a FOIA search is generally determined
not by the fruits of the search, but by the appropriateness of the methods used to carry out the
search.” Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). The
Court may rely on an agency’s “reasonably detailed [declarations], setting forth the search terms
and the type of search performed, and averring that all files likely to contain responsive materials
4
(if such records exist) were searched.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326
(D.C. Cir. 1999) (quoting Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990))
(internal quotation marks omitted).
The FBI’s declarant set forth a detailed explanation of the agency’s recordkeeping
systems, the organization of information within these systems, and the scope and method of
FBI’s search for records responsive to plaintiff’s FOIA request. See generally Seidel Decl. ¶¶ 9-
23. Based on plaintiff’s representation that the FBI “had conducted digital analysis of
information in connection with the investigation into [his] criminal activities” in Missouri, FBI
staff “determined the Kansas City Field Office (‘KCFO’) would be the location most likely to
maintain potentially responsive records.” Id. ¶ 22. KFCO staff used that office’s “own internal
agency case number, 02-11-0152, to locate and provide [150 pages of responsive] records[.]”
Id.; see id. ¶ 26. Plaintiff has not challenged FBI’s search in any way, and on review of FBI’s
supporting declaration, the Court concludes that the agency conducted a search reasonably
calculated to locate records responsive to plaintiff’s FOIA request.
C. Exemption 7
1. Law Enforcement Records
Exemption 7 protects from disclosure “records or information compiled for law
enforcement purposes,” 5 U.S.C. § 552(b)(7), but only to the extent that disclosure of such
records would cause an enumerated harm, see FBI v. Abramson, 456 U.S. 615, 622 (1982). “To
show that . . . documents were compiled for law enforcement purposes, the [agency] need only
establish a rational nexus between the investigation and one of the agency’s law enforcement
duties and a connection between an individual or incident and a possible security risk or
5
violation of federal law.” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (internal quotation
marks and citations omitted).
The declarant describes the FBI as “the primary investigative agency of the federal
government with authority and responsibility to investigate all violations of federal law not
exclusively assigned to another agency, to conduct investigations and activities to protect the
United States and its people from terrorism and threats to national security, and further the
foreign intelligence objectives of the United States.” Seidel Decl. ¶ 30. FBI also may assist
“state, local, and tribal enforcement agencies in the investigation of matters that may involve
federal crimes or threats to the national security, or for such other purposes as may be legally
authorized.” Id. ¶ 31 (citation and internal quotation marks omitted).
Here, the declarant explains, the FBI “assisted the Platte County, Missouri, Sheriff’s
Office by conducting a forensic examination of Anthony Accurso’s electronic devices in
connection with his potential violation of 18 U.S.C. § 2252(a)(2), Distribution of Child
Pornography Over the Internet.” Id.; see id. ¶ 25. He represents that the “FBI compiled the
records at issue pursuant to its assistance to a law enforcement function,” id. ¶ 25, that is,
providing assistance to a local law enforcement agency, see id. ¶¶ 25, 31. Thus, FBI easily
meets its burden to establish that all the records responsive to plaintiff’s FOIA request were
compiled for law enforcement purposes and fall within the scope of Exemption 7.
6
2. Third Parties and Exemption 7(C)2
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
U.S.C. § 552 (b)(7)(C). In determining whether this exemption applies to particular information,
the Court must balance the interest in privacy of individuals mentioned in the records against the
public interest in disclosure. See Am. Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1,
6 (D.C. Cir. 2011) (“In deciding whether the release of particular information constitutes an
unwarranted invasion of privacy under Exemption 7(C), we must balance the public interest in
disclosure against the [privacy] interest Congress intended the Exemption to protect.”) (internal
quotation marks and citation omitted). When balancing the private interest against the public
interest in disclosure, “the 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
v. U.S. Dep’t of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting U.S. Dep’t of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)).
The FBI relies on Exemption 7(C) to withhold the names of and identifying information
about Heart of America Regional Computer Forensics Laboratory staff and task force officers,
see Seidel Decl. ¶ 36, local law enforcement personnel, see id. ¶ 38, third party victims, see id. ¶
2
The FBI relies on both Exemption 6 and Exemption 7(C) to protect the same third-party
information. See Seidel Decl. ¶ 33 n.5. But the Court need not consider whether Exemption 6
applies in this case. All the responsive records were compiled for law enforcement purposes,
and therefore the Court addresses only whether the FBI justifies its decision under Exemption
7(C). See Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011) (concluding that,
where “all documents responsive to [plaintiff’s FOIA] requests . . . were compiled for law
enforcement purposes,” the court “focus[es] on Exemption 7(C) rather than Exemption 6 since it
is the broader of the two”).
7
39, and third parties merely mentioned in the responsive records, see id. ¶ 40.3 Its declarant
states that disclosure of the third parties’ identities would constitute an unwarranted invasion of
their personal privacy and that no public interest outweighs their privacy interest. See Seidel
Decl. ¶¶ 37-40. Nor would disclosure “increase the public’s understanding of the FBI’s
operations and activities.” Id. ¶ 37; see id. ¶¶ 38-40.
Plaintiff does not object to the FBI’s decision to withhold names of and identifying
information about Heart of America Regional Computer Forensics Laboratory staff and task
force officers, local law enforcement personnel, and third parties merely mentioned in the
responsive records. And he “has no problem with the redaction of actual victim names,” Pl.’s
Surreply at 7, from pages 48-49 of the responsive records, see Amended Vaughn Index at 2
(page number designated by defendant).4 In these respects, the Court treats the FBI’s arguments
as conceded. See, e.g., Ford v. Dep’t of Justice, 208 F. Supp. 3d 237, 251 (D.D.C. 2016)
(treating as conceded the FBI’s arguments where plaintiff “fails even to mention the . . . third
parties whose identities the FBI protects”), appeal dismissed, 664 F. App’x 9 (D.C. Cir. Nov. 9,
2006). However, plaintiff questions the declarant’s assertion that the FBI “withheld just enough
3
The declarant explains that the Heart of America Regional Computer Forensics Laboratory
“fosters a partnership between the FBI and other federal, state, and local law enforcement
agencies operating a regional, digital forensic task force. The laboratories provide forensic
services and expertise to support law enforcement agencies in collecting and examining digital
evidence for a wide range of investigations, including child pornography, terrorism, violent
crime, and fraud." Seidel Decl. ¶ 36 n.7 (citation and internal quotation marks omitted).
4
Plaintiff identified, see Pl.’s Opp’n at 3-4, and defendant corrected, see Reply at 2, an error in
the Vaughn Index, see Seidel Decl., Ex. D (ECF No. 18-3) at 2 (page number designated by
defendant). The original Vaughn Index did not reflect that information on pages 47, 50-51, and
55-62 had been withheld under Exemption 7(E) in addition to Exemptions 6 and 7(C), and the
Amended Vaughn Index corrected the error, see Amended Vaughn Index at 2 (ECF No. 22 at
12).
8
information under [Exemption 7(C)] to satisfy its requirements under the law.” Pl.’s Opp’n at
12.
Plaintiff’s argument presumes that the FBI is withholding filenames appearing in the
responsive records because the filenames themselves incorporate victims’ names. If the FBI’s
forensic examiners found over 15,000 images of child pornography, plaintiff thinks it “unlikely
that the entirety of the list of filenames is contained on those two pages.” Id. at 10. He posits
that FBI improperly relies on Exemption 7(E), not Exemption 7(C), “to justify withholding of
file names and info hashes of files identified as actual or suspected child pornography,” when it
is unlikely that an offender would incorporate a victim’s name into a filename. Id. “If the
victims are easily identified, then producers [of child pornography] are similarly easily
identifiable, resulting in prosecution.” Id. Further, plaintiff notes, a filename is “not necessarily
descriptive of a file’s contents,” id., and if a filename includes a person’s name, it likely is
pseudonym assigned “to a victim for the purpose of cataloging abuse images together,” id. at 11;
see Pl.’s Surreply at 4-6. Therefore, because filenames would not incorporate a victim’s true
name, see Pl.’s Opp’n at 7-12, “release cannot reasonably implicate the privacy interest of
victims,” Pl.’s Surreply at 10.
Plaintiff also disputes defendant’s assertion that no public interest outweighs the victims’
privacy interests, arguing that a collateral attack on his sentence qualifies. See Pl.’s Surreply at
8. “If the Agency falsified evidence or its claims about evidence to support [his] conviction . . . ,
such perjury would be illegal.” Id. at 9. And, plaintiff contends, the FBI “either . . . is lying to
the court now, or it was lying to the court in 2013” when he was charged. Id. Neither response
has merit.
9
The plain language of the declaration indicates that FBI withholds only “the names of
third party victims.” Seidel Decl. ¶ 39. It makes no mention of filenames, and nothing in the
record of this case establishes that filenames and victims’ names are the same. Crime victims
certainly have a cognizable privacy interest that the FBI rightfully acknowledges. See Schrecker
v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (recognizing D.C. Circuit “decisions
[which] have consistently supported nondisclosure of names or other information identifying
individuals appearing in law enforcement records, including investigators, suspects, witnesses,
and informants”); Fabiano v. McIntyre, 146 F. App’x 549, 550 (3d Cir. 2005) (per curiam)
(affirming district court decision protecting names of victims in child pornography photographs);
Dunkelberger v. Dep’t of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990) (“Exemption 7(C) 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.” (citation and
internal quotation marks omitted)).
Plaintiff might overcome the victims’ privacy interest if he could provide “compelling
evidence that the agency denying the FOIA request is engaged in illegal activity.” Computer
Professionals for Social Responsibility v. U.S. Secret Serv., 72 F.3d 897, 905 (D.C. Cir.
1996) (quoting Davis, 968 F.2d at 1282). His interest in challenging his criminal conviction does
not suffice, however, as a “personal stake in using the requested records to attack his
conviction[] does not count in the calculation of the public interest.” Oguaju v. United
States, 288 F.3d 448, 450 (D.C. Cir. 2002), vacated and remanded, 541 U.S. 970 (2004), on
remand, 378 F.3d 1115 (D.C. Cir. 2004) (reaffirming prior decision), cert. denied, 544 U.S. 983(2005); Engelking v. DEA, 119 F.3d 980, 980-81 (D.C. Cir. 1997) (per curiam) (“To the extent
[the appellant] argues that he seeks exculpatory information, [his] personal need for information
10
is immaterial to whether that information is protected from disclosure by one of the exemptions
to the FOIA.”). His unsupported assertion that governmental misconduct may have occurred in
the course of his criminal case does not “demonstrate ‘that the public interest sought to be
advanced is a significant one,’ and that release of the requested information ‘is likely to advance
that interest.’” Pugh v. FBI, 793 F. Supp. 2d 226, 232 (D.D.C. 2011) (quoting Nat’l Archives &
Records Admin. v. Favish, 541 U.S. 157, 172 (2004)).
“As a general rule, third-party identifying information contained in [law enforcement]
records is ‘categorically exempt’ from disclosure.” Lazaridis v. U.S. Dep’t of State, 934 F. Supp.
2d 21, 38 (D.D.C. 2013) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 896
(D.C. Cir. 1995)); see Blackwell, 646 F.3d at 41 (“As a result of Exemption 7(C), FOIA
ordinarily does not require disclosure of law enforcement documents (or portions thereof) that
contain private information.”). Based on the declarant’s descriptions of and reasons for
withholding all the third party information, see generally Seidel Decl. ¶¶ 36-40, and absent a
meaningful opposition from plaintiff, the Court concludes that FBI adequately justifies its
reliance on Exemption 7(C).
3. CART Reports and Data and Exemption 7(E)
Exemption 7(E) protects information in records compiled for law enforcement purposes
if its release “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). “The requirement that records ‘would disclose techniques and procedures for law
enforcement investigations or prosecutions’ . . . is met, inter alia, where a record would disclose
details about a law enforcement technique or procedure itself . . . or would disclose information
11
regarding ‘when . . . agencies are likely to employ’ certain techniques or procedures[.]”
Sheridan v. U.S. Office of Personnel Mgmt., 278 F. Supp. 3d 11, 19 (D.D.C. 2017) (citing Sack v.
U.S. Dep’t of Defense, 823 F.3d 687, 694 (D.C. Cir. 2016) and Blackwell, 646 F.3d at 42). This
first clause “provides categorical protection, requiring no demonstration of harm or balancing of
interests.” Peter S. Herrick’s Customs & Int’l Trade Newsletter v. U.S. Customs & Border Prot.,
No. 04-CV-00377, 2006 WL 1826185, at *7 (D.D.C. June 30, 2006) (citation and internal
quotation marks omitted). The exemption’s second clause “encompasses a broader range of
information, but requires an assessment of whether disclosure poses a reasonable risk that the
law could be circumvented.” Id. (citing PHE, Inc. v. U.S. Dep’t of Justice, 983 F.2d 248, 252
(D.C. Cir. 1993)). This requires that the agency surpass “a relatively low bar,” such that it need
“only . . . demonstrate logically how the release of the requested information might create a risk
of circumvention of the law.” Blackwell, 646 F.3d at 42 (quoting Mayer Brown LLP v. IRS, 562
F.3d 1190, 1194 (D.C. Cir. 2009)). As is the case with any other FOIA exemption, “[t]he burden
is on the agency to justify withholding the requested documents [under Exemption 7(E)], and the
FOIA directs district courts to determine de novo whether non-disclosure was permissible.”
Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015)
(citations omitted).
The FBI invokes Exemption 7(E) to protect “non-public investigative techniques and
procedures . . . and . . . non-public details about techniques and procedures that are otherwise
known to the public.” Seidel Decl. ¶ 43. The responsive records are Computer Analysis
Response Team (“CART”) reports and data “resulting from the FBI’s analysis of digital media
collected by the Platte County Sheriff’s Office concerning [p]laintiff’s activities in violation of
18 U.S.C. § 2252(a)(2), Distribution of Child Pornography.” Id. ¶ 44. The declarant explains:
12
FBI’s CART provides digital forensics, technical capabilities, and
related services and support to the FBI, intelligence organizations,
and other law enforcement agencies. CART provides support to
investigations that are reliant, in whole or in part, upon digital
evidence, namely through the acquisition, preservation,
examination, processing, and presentation of digital information
stored in computers or other electronic devices or media. CART
analyzes a variety of digital media, including but not limited to,
desktop and laptop computers, Compact Disks (“CDs”)/Digital
Video Disks (“DVDs”), cell phones, digital cameras, digital media
players, flash media, and other digital media storage devices.
Id. Here, the FBI withholds “specific investigative tools, techniques, examiner notes, and
forensic examination reports conducted on [plaintiff’s] electronic devices, in order to avoid
unnecessarily exposing sensitive FBI technical capabilities.” Id.“[D]etailed information about CART software, equipment, techniques, procedures, and/or
types of reports generated by CART during [its] forensic testing processes” is protected for two
reasons. Id. First, the declarant asserts, release would harm the agency’s “effectiveness in
investigating crimes where evidence can be found on computers and other digital media.” Id.Second, release “would . . . aid in circumvention of the law by providing criminals the
information necessary for them to adjust behavior in order to avoid detection, develop and/or
utilize technology less susceptible to law enforcement detection or scrutiny, and/or use or
develop technology to counteract techniques used by CART.” Id.a. Recovery of Files
Plaintiff responds that the FBI improperly applies Exemption 7(E) because certain of the
information withheld is public already. See Pl.’s Opp’n at 4. According to plaintiff, “[i]t is well
established that . . . forensic examinations include a review of files on . . . devices under
examination, and that such a review also includes files which may be located in deleted space.”
Id.; see id. at 5. He opines that “[t]he agent performing evaluation of [his] devices also likely
used hash values to confirm that at least some of [the] images/videos [on the devices] were
13
known to be child pornography,” and states that “[h]ash values are available to law enforcement
agencies via the Child Online Protection System . . . database.” Id. at 5. In addition, plaintiff
asserts that “programs for detecting child pornography on peer-to-peer networks has been
available to the public” for several years. Id. at 6. For these reasons, plaintiff argues that “any
references to the use of software to recover actual or suspected child pornography . . . and the use
of such software to locate and download child pornography from suspected distributors via peer-
to-peer networks cannot be exempted . . . because these tools and methods are clearly in the
public record.” Id. Similarly, plaintiff argues that the FBI cannot withhold “lists of the
processes performed by CART as part of its examination” from pages 5-8 of the responsive
records” because such processes are already made public.” Id. at 7. In support of his position,
plaintiff cites criminal cases in other jurisdictions, see id. at 5-6, none of which, as defendant
explains, see Def.’s Reply at 3 n.2, pertain to disclosures under FOIA.
That forensic examination involves the retrieval of files and the use of software for this
purpose may be public knowledge. What FBI withholds, however, is information not known to
the public. See Seidel Decl. ¶ 43. Plaintiff can only speculate about that the software,
techniques, and procedures CART employed during its examination is known to the public, and
his mere speculation as to the content of these records cannot overcome the presumption of good
faith accorded to the FBI’s declaration or defendant’s showing on summary judgment. See
SafeCard Servs., 926 F.2d at 1200; see also Hastie v. Henderson, 121 F. Supp. 2d 72, 77 (D.D.C.
2000), aff’d, No. 00-5423, 2001 WL 793715 (D.C. Cir. 2001) (“To defeat a motion for summary
judgment, a plaintiff cannot create a factual issue of pretext with mere allegations or personal
speculation, but rather must point to ‘genuine issues of material fact in the record.’”).
14
b. Electronic Devices Examined
Next, plaintiff objects to the redaction of information on page 2 of the responsive records
in a section titled “Specimens.” See Pl.’s Opp’n at 7. Plaintiff presumes that this section “refers
to the electronic devices seized during execution of the search warrant on [p]laintiff’s home,”
and concludes that this information must be released because the Plea Agreement, which is
publicly available, lists all of the devices seized from his home. Id.; see Def.’s Mem., Ex. 1 ¶ 3.
Again plaintiff offers mere speculation as to the contents of the “Specimens” section, and
without evidence to support his assertion, plaintiff cannot withstand defendant’s showing.
c. Victims’ Names and Filenames
Plaintiff contends that the FBI wrongfully withholds under Exemption 7(E) the
“filenames and info hashes of the files identified as actual or suspected pornography.” Pl.’s
Opp’n at 10. Neither the FBI’s declaration nor Vaughn Index expressly mentions “filenames,”
yet plaintiff proceeds on the assumption that disclosure of a filename also discloses the name of
or describes a child victim. See id. at 9. Plaintiff misreads the declaration. As discussed above,
and as plaintiff concedes, victims’ names properly are withheld under Exemption 7(C).
On review of defendant’s submission, the Court concludes that the FBI properly relies on
Exemption 7(E) to withhold non-public details about CART software, equipment, techniques,
procedures and reports generated during its forensic examination of plaintiff’s electronic devices.
See Blackwell, 646 F.3d at 42 (holding that “details about procedures used during the forensic
examination of a computer by an FBI forensic examiner. . . are undoubtedly ‘techniques’ or
‘procedures’ used for ‘law enforcement investigations” (internal quotation marks and citation
omitted)); Gatson v. FBI, No. 15-CV-5068, 2017 WL 3783696, at *15 (D.N.J. Aug. 31, 2017)
(concluding that FBI properly withheld “detailed requests, reports, notes, and/or data resulting
15
from the FBI's analysis of computer and other digital media seized pursuant to search warrants
and/or subpoenas” under Exemption 7(E)), aff’d, 779 F. App’x 112 (3d Cir. 2019); Passmore v.
Dep’t of Justice, 245 F. Supp. 3d 191, 204 (D.D.C. 2017) (concluding “FBI properly has
withheld CART data under Exemption 7(E)”), aff’d sub nom. Passmore v. U.S. Dep’t of Justice,
No. 17-5083, 2017 WL 4231167 (D.C. Cir. Sept. 13, 2017), cert. denied, 138 S. Ct. 1269 (2018).
D. Segregability
“[N]on-exempt portions of a document must be disclosed unless they are inextricably
intertwined with exempt portions.” Wilderness Soc’y v. U.S. Dep’t of Interior, 344 F. Supp. 2d
1, 18 (D.D.C. 2004) (quoting Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d
242, 260 (D.C. Cir. 1977)); 5 U.S.C. § 552(b). An agency must provide “a detailed justification
and not just conclusory statements to demonstrate that all reasonably segregable information has
been released.” Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C. 2010) (citation omitted). The
FBI meets its burden here by adequately describing the information withheld, see Seidel Decl. ¶¶
36-40, 44, and averring that all reasonably segregable material has been released, see id. ¶ 45.
III. CONCLUSION
The Court concludes that the FBI conducted a reasonable search for records responsive to
plaintiff’s FOIA request, that it adequately justified its decisions to withhold information under
Exemptions 7(C) and 7(E), and that it released all reasonably segregable information.
Accordingly, the Court grants defendant’s motion for summary judgment. An Order is issued
separately.
DATE: February 5, 2021 /s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
16