RICHARD J. LEON, District Judge.
Plaintiff Benny Lee Hodge ("plaintiff" or "Hodge") brings this action against the Federal Bureau of Investigation ("FBI") and U.S. Department of Justice ("DOJ") (collectively "defendants") for failure to disclose information pursuant to the Freedom of Information Act ("FOIA"). Plaintiff seeks material in order to collaterally challenge two convictions that have placed him on death row in Kentucky. Before this Court is defendants' Motion for Summary Judgment and plaintiffs Cross-Motion for Partial Summary Judgment. After due consideration of the parties' pleadings, the relevant law, and the entire record herein, defendants' motion is GRANTED and plaintiffs motion is DENIED.
On October 10, 2002, plaintiff, through counsel, submitted a FOIA and Privacy Act request to the FBI Louisville Field Office ("LSFO") seeking "all records maintained by [the] agency pertaining to Mr. Hodge ..." First Hardy Decl. to Def.'s Mot. for Summ. J., Mar. 9, 2009, ("Hardy Decl.") ¶ 13; Hardy Decl., Ex. A. Having been sentenced to death in Kentucky, plaintiff sought the records in order to collaterally challenge his convictions. Pl.'s Opp'n and Cross-Mot. for Partial Summ. J. ("Pl.'s Opp'n") at 4, n. 1. About one year later, the LSFO informed plaintiff that 569 pages had been reviewed in response to his request and that 361 pages would be released. Hardy Decl. ¶¶ 17-19. The LSFO also advised plaintiff that certain documents were either exempt from release or contained redactions pursuant to the Privacy Act of 1974, 5 U.S.C. § 552a(j)(2), and FOIA, 5 U.S.C. § 552(b)(2), (b)(7)(C), (b)(7)(D), and (b)(7)(E). Hardy Decl. ¶ 19. On January 7, 2004, plaintiff appealed the LSFO's decision to withhold/redact documents to the DOJ Office of Information and Privacy ("OIP"). Hardy Decl. ¶ 20. On March 6, 2005, the DOJ OIP affirmed the FBI's decision. Hardy Decl. ¶ 22.
Three years later, plaintiff filed this complaint, asking the Court to order the release of all documents responsive to plaintiff's initial request. Koyama Decl. to Pl.'s Opp'n, May 15, 2009, ("Koyama Decl.") ¶ 5. The FBI subsequently conducted a second search for responsive documents. After a review of all potentially responsive documents, the FBI determined that a total of 1,670 documents were, in fact, responsive to plaintiff's request. Koyama Decl. ¶¶ 9-11. From June 30, 2008 to September 12, 2008, over the course of three productions, the FBI released these documents, again redacting and withholding certain information under the Privacy Act and various FOIA provisions. Hardy Decl. 1 ¶¶ 24-26; Koyama Decl. ¶¶ 9-11. Later, while preparing its motion to for summary judgment, the FBI conducted yet another review of potentially responsive documents and identified an additional 92 responsive pages, which were released to plaintiff. Koyama Decl. ¶ 19; Hardy Decl. ¶ 40. Ultimately, the FBI determined that a total of 1,762 pages were responsive to plaintiffs October 10, 2002 request.
On March 10, 2009, defendants filed a motion for summary judgment contending that "all reasonably segregable documents not subject to exemption" had been disclosed. Def.'s Mot. for Summ. J. ("Def.'s Mot.") at 1. Along with the motion, defendants filed an affidavit by David M. Hardy ("Hardy Declaration"), Section Chief of the FBI's Records Management Division in charge of responding to FOIA requests. Along with giving background on the FBI's Central Records System ("CRS") and Electronic Surveillance ("ELSUR") Indices, the Hardy Declaration explains the steps taken by the FBI in conducting its search and outlines its redaction and withholding decisions. See Hardy Decl.
On May 15, 2009, plaintiff filed a cross-motion for summary judgment, asserting that the Hardy Declaration inadequately explains why the FBI withheld and redacted certain documents. See Pl. Opp'n at 12-13. Plaintiff argues that because he cannot address, in fairness, the merits of the FBI's reasons for exempting certain documents from disclosure, defendants must produce an adequate index pursuant to Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir.1973). See Pl. Opp'n at 15. Plaintiff further contends that defendants have not shown that the FBI conducted an adequate search for responsive documents, did not reasonably segregate non-exempt
"When assessing a motion for summary judgment under FOIA, the Court shall determine the matter de novo." Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec., 598 F.Supp.2d 93, 95 (D.D.C.2009) (citing 5 U.S.C. § 552(a)(4)(B)). Summary judgment is appropriate when the record demonstrates that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the burden, and the court will draw "all justifiable inferences" in the favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nevertheless, the non-moving party "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Id. at 248, 106 S.Ct. 2505 (internal quotations omitted). Factual assertions in the moving party's affidavits may be accepted as true unless the opposing party submits its own affidavits, declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir.1992).
In a FOIA action, an agency must "demonstrate beyond a material doubt that its search was `reasonably calculated to uncover all relevant documents.'" Valencia-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)). 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) (per curiam). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with 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.
Further, with respect to an agency's non-disclosure decisions, the court may rely on affidavits or declarations if they describe "the justifications for non-disclosure 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)). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Larson v. U.S. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009) (internal quotations omitted).
As an initial matter, plaintiff bases much of his position on a FOIA production to Mr. Roger Dale Epperson ("Epperson"), plaintiffs co-defendant in his underlying criminal case. Plaintiff has, therefore, provided a July 12, 2005 FOIA cover letter along with roughly 125 pages of
Defendants have submitted two additional Hardy Declarations addressing the July 12, 2005 FOIA release ("First Supplemental Hardy Declaration" and "Second Supplemental Hardy Declaration"). See Hardy Decl., Jul. 9, 2009 ("Supp. Hardy Decl. 1"); Hardy Decl., Sept. 15, 2009 ("Supp. Hardy Decl. 2"). In light of plaintiff's proffer of the Epperson documents, the FBI performed a page by page comparison of the FBI's own electronic record of what was released to Epperson with the July 12, 2005 cover letter and the 125 documents put forth by plaintiff. The First Supplemental Hardy Declaration states clearly that the two sets of documents do not match. Supp. Hardy Decl. 1 ¶ 7. In other words, the FBI's own electronic records indicate that 125 pages produced by plaintiff were not the same set of documents actually produced in conjunction with the July 12, 2005 letter. Supp. Hardy Decl. 1 ¶ 7.
This is clearly supported by the record. Indeed, the July 12, 2005 cover letter specifically states that 450 pages were released pursuant to Epperson's FOIA request. Komp Decl., Ex. R. This is facially inconsistent with the plaintiffs proffered production, which only amounts to approximately 125 pages. Further, the FOIA cover letter states that certain information within the production was deleted or withheld under various Privacy Act and FOIA exemptions. Komp Decl., Ex. R. The letter explains that the applicable exemptions are noted next to each excision within the production set, and then list the specific exemptions referenced. Komp Decl., Ex. R. Despite this explanation, clearly exempted information within the proffered documents was not redacted. In fact, the 125 pages submitted by plaintiff include no redactions or notations at all. Komp Decl., Ex. R. In sum, this Court finds that a reasonable jury could not conclude that that the 125 pages submitted by plaintiff were deliberately released as part of the July 12, 2005 FOIA production.
FOIA's purpose is to "implement a general philosophy of full agency disclosure" by making agency "opinions, statements of policy, interpretations, [] staff manuals, and instructions that are not published in the Federal Register" available for public inspection. U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 754, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (internal quotations omitted). When an individual seeks a FOIA disclosure from a federal agency, and the agency, in turn, claims one of various statutory exemptions, an "asymmetrical distribution of knowledge" develops. King v. U.S. Dep't of Justice, 830 F.2d 210, 218 (D.C.Cir.1987). This renders the opposing party "helpless to controvert" the validity of the agency's exemption. Vaughn, 484 F.2d at 826. To remedy this asymmetry, the agency must prove an exemption's merits through use of a Vaughn index or its functional equivalent. See Judicial Watch Inc. v. FDA, 449 F.3d 141, 146 (D.C.Cir.2006). The agency satisfies its burden so long as the index is specific, detailed, and separable enough to "adequately describe each withheld document, state which exemption the agency claims for each withheld document, and explain the exemption's relevance." Johnson v. Exec. Office for U.S. Attys., 310 F.3d 771, 774 (D.C.Cir.2002).
Here, the Hardy Declaration, together with coded references within the production, is legally sufficient to satisfy the government's burden. In particular, the Hardy Declaration explains that the FBI employs codes in order to reference its reasoning for why documents are redacted or withheld. Hardy Decl. ¶¶ 41-43. The codes appear in the production set of all responsive documents, which is appended to the Hardy Declaration and Bates-stamped HODGE 1-1761. Hardy Decl. ¶ 41. Thus each redaction or withheld page
Thus, the FBI's Hardy Declaration is sufficiently specific, detailed, and separable to satisfy defendants' burden under Vaughn because the declaration provides "a reasonable basis to evaluate [each] claim of privilege." See Judicial Watch, 449 F.3d at 146; see also Fischer v. U.S. Dep't of Justice, 596 F.Supp.2d 34, 43-44 (D.D.C.2009). Indeed, because the function, and not the form, of the index is dispositive, our Circuit has upheld similar agency declarations coupled with coded categories, in lieu of Vaughn indices. See Judicial Watch, 449 F.3d at 150; Keys v. U.S. Dep't of Justice, 830 F.2d 337, 349-50 (D.C.Cir.1987).
An agency's search is adequate if its methods are reasonably calculated to locate records responsive to a FOIA request. See Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C.Cir.1990). As such, an agency need not search every records system as long as it conducts "a reasonable search tailored to the nature of a particular request." Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 28 (D.C.Cir.1998). Indeed, "the 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); see also Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983).
Here, the Hardy Declaration sufficiently demonstrates the FBI's compliance with FOIA's search requirements. See Perry, 684 F.2d at 127. As the Declaration explains, the FBI maintains a Central Records System ("CRS"), which consists of "administrative, applicant, criminal, personnel, and other files compiled for law enforcement purposes." Hardy Decl. ¶ 27. While CRS serves as an investigative tool, it is also used in responding to FOIA requests. Hardy Decl. ¶ 27. To search CRS, the FBI uses a mechanism called the Automated Case Support System ("ACS"). Hardy Decl. ¶ 27. ACS, in turn, retrieves CRS records through the use of General Indices, which fall into two categories, "main" entries, which "carr[y] the name corresponding with a subject of a file contained in the CRS," and "reference" entries,
Generally, "ACS consists of three integrated, yet separately functional, automated applications that support case management functions for all FBI investigative and administrative cases." Hardy Decl. ¶ 31. These applications are Investigative Case Management ("ICM"), which "provides the ability to open, assign and close investigative and administrative cases as well as set, assign, and track leads," the Electronic Case File ("ECF"), which "serves as the central repository for the FBI's official text-based documents," and the Universal Index ("UNI"), which provides "a complete subject/case index to all investigative and administrative cases." Hardy Decl. ¶ 31. The FBI Special Agent assigned to the investigation and the Supervisory Special Agents in the field and at headquarters decide whether to index names other than subjects, suspects and victims. Thus, only "information considered to be pertinent, relevant, or essential for future retrieval" is indexed. Hardy Decl. ¶ 32.
As the Hardy Declaration further explains, electronic surveillance records may be searched through the FBI's ELSUR Indices. "ELSUR Indices are used to maintain information on subjects whose electronic and/or voice communications have been intercepted as the result of a warrantless and/or consensual ELSUR or a court-ordered (and/or sought from the Court) ELSUR conducted by the FBI." Hardy Decl. ¶ 33.
With respect to plaintiffs request, the FBI conducted searches of CRS, ELSUR and its Laboratory Division in Quantico, Virginia. Hardy Decl. ¶¶ 37-38. The search of CRS used variations of plaintiffs name, including the phonetic breakdown of his first, middle and last names, as well as other means of identification, including date of birth, place of birth, and Social Security Number. Hardy Decl. ¶ 37. This search returned 6000 pages of potentially responsive records. Hardy Decl. ¶ 39. The FBI then reviewed each page to identify documents that were, in fact, responsive. Hardy Decl. ¶ 39. Neither the search of ELSUR nor that of the Laboratory Division yielded any results. Hardy Decl. ¶ 38.
Plaintiff raises various challenges to the adequacy of the FBI search. First, plaintiff notes that the Hardy Declaration does not provide a "detailed account of how the responsive documents for Mr. Hodge's particular request were collected." Pl. Opp'n at 19. This allegation, however, is contradicted by the Hardy Declaration itself, which explains the comprehensive nature of the databases searched, particularly the CRS, and explains the various identifying terms used in the actual search. Hardy Decl. ¶¶ 37-38.
The procedures described in the Hardy Declaration explain in reasonable detail the scope and method of the agency's search. See Perry, 684 F.2d at 126. It is further reasonable that documents pertaining to plaintiff—who was a suspect in an FBI investigation—would be found within CRS files and ELSUR Indices, precisely because these are central repositories of information relating to investigations. See Campbell, 164 F.3d at 28. That no documents were found to be responsive on the ELSUR Indices or at the Laboratory Division is not determinative of the sufficiency of the search. See Iturralde, 315 F.3d at 315; see also SafeCard Servs., 926 F.2d at 1201. Further, it seems obvious that the databases searched allowed the FBI to conduct a search by using an individual's name or other identifiable information—which is, indeed, appropriate given plaintiff's request for all records "pertaining to Mr. Hodge." See Hardy Decl., Ex. A. Thus, the search was reasonably tailored to plaintiffs request. See Campbell, 164 F.3d at 28.
Plaintiff also claims that defendants have not shown that non-exempt information was segregated from exempt information and properly released as required by FOIA. Pl. Opp'n at 26-28. Indeed, if an agency claims that a document is exempt under FOIA, any reasonably segregable information must be released after excising the exempted information, unless the non-exempt information is inextricably intertwined with the exempt information. Trans-Pac. Policing Agmt. v. U.S. Customs Serv., 177 F.3d 1022, 1027 (D.C.Cir.1999).
The Hardy Declaration adequately states that "the FBI carefully examined the 1,762 pages of responsive records" and released all reasonably segregable non-exempt information. Hardy Decl. ¶ 89; see also Hardy Decl. ¶ 41 ("Every effort was made to provide plaintiff with all material in the public domain and with all reasonably segregable portions of released material."). In the absence of contrary declarations by plaintiff or specific cites to potentially unsegregated documents, the Hardy Declaration is afforded the presumption of good faith. See Safe-Card Servs., 926 F.2d at 1200.
Under the law of our Circuit, "[i]f an agency's statements supporting exemption contain reasonable specificity of detail as to demonstrate that the withheld information logically falls within the claimed exemption and evidence in the record does not suggest otherwise, ... the court should not conduct a more detailed inquiry to test the agency's judgment and expertise or to evaluate whether the court agrees with the agency's opinions." Larson, 565 F.3d at 865. Here plaintiff challenges defendants' invocation of FOIA Exemptions 3, 6, 7(C) and 7(D). Plaintiff fails, however, to put forth any evidence to counter the Hardy Declaration's detailed explanation regarding these claimed exemptions.
Exemption 3 allows an agency to withhold information otherwise exempted by statute. 5 U.S.C. § 552(b)(3). Here, the relevant statute is Federal Rule of Criminal Procedure 6(e), which relates to matters "occurring before the grand jury." Fed.R.Crim.P. 6(e). In withholding information under Rule 6(e), our Circuit has held that the "the touchstone is whether disclosure would tend to reveal some secret aspect of the grand jury's investigation, such matters as the identities or addresses of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like." Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 732 (D.C.Cir.2008) (citations omitted).
Exemption 7 generally applies to "records or information compiled for law enforcement purposes," if disclosure of such records would lead to one of various enumerated harms. 5 U.S.C. § 552(b)(7). Exemption 7(C), in particular, protects information that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Thus, in determining the applicability of Exemption 7(C), the Court must balance the interests advanced by FOIA's disclosure requirements against the privacy interests of the individuals mentioned in the records. Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C.Cir. 1993). "Because the FOIA is concerned with the right of the general public to know what their government is up to, the identity and interest of the party requesting the document are irrelevant to this balancing." Mays v. DEA, 234 F.3d 1324, 1327 (D.C.Cir.2000). This applies equally to individuals seeking information in order to challenge a criminal conviction. See Willis v. U.S. Dep't of Justice, 581 F.Supp.2d 57, 76 (D.D.C.2008).
Here, the information in question was clearly compiled for "law enforcement purposes." See 5 U.S.C. § 552(b)(7). The Hardy Declaration states that information withheld under Exemption 7(C) relates to the identity of agents, federal, state and local government employees, victims, and third parties who provided information to the FBI, were merely mentioned, or were of investigative interest. Hardy Decl. ¶¶ 60-75. It is well settled that these individuals have a substantial interest in their anonymity. Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 893-96 (D.C.Cir.1995); Coleman v. FBI, 13 F.Supp.2d 75, 80 (D.D.C.1998). As there is no public interest against which to balance such a substantial privacy interest, see Mays, 234 F.3d at 1327, defendants
Plaintiff, however, challenges the application of the exemption, arguing that the redactions made were excessive. Pl. Opp'n at 31-32. This argument is to no avail. Exemption 7(C) is not limited to basic identifying information such as names, addresses and phone numbers. Indeed, if any information "would reveal the identities of individuals who are subjects, witnesses, or informants in law enforcement investigations, those portions of responsive records are categorically exempt from disclosure." Nation Magazine, 71 F.3d at 896; see also Coleman, 13 F.Supp.2d at 80. Thus, the length of the redaction does not run contrary to the exemption claimed.
Plaintiff's additional argument also must fail. While public disclosure of documents may lead to the waiver of the FOIA exemption, the plaintiff bears the initial burden of showing that the requested information: (1) is as specific as the information previously disclosed; (2) matches the information previously disclosed; and (3) was made public through an official and documented disclosure. See Cottone v. Reno, 193 F.3d 550, 554 (D.C.Cir.1999); Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.Cir.1990). Apart from the 125 pages proffered in connection with the Epperson FOIA cover letter, which do not affect this analysis, see supra Sec. II, plaintiff provided newspaper articles relating to the underlying crimes. Pl. Opp'n at 32 (citing Koyama Decl. ¶ 23, Ex. N). However, plaintiff fails to show how the information contained in the newspapers is as specific as or matches that contained in the responsive documents. Finally, plaintiff argues that defendants were required to determine the life status of any individual whose information was withheld. Pl. Opp'n at 33. However, "while death of an individual reduces the privacy interest, it does not eliminate it." Blanton v. U.S. Dep't of Justice, 64 Fed.Appx. 787, 789 (D.C.Cir.2003). Thus, even assuming all the individuals have died, because there is no identifiable public interest here, their interests, though diminished, would justify withholding information under Exemption 7(C). See id.
This Court, therefore, finds that defendants have properly withheld information under Exemption 7(C).
Exemption 7(D) protects "the identity of a confidential source," if the information was furnished on a confidential basis, and "information furnished by a confidential source," if compiled by a law enforcement authority during the course of a criminal investigation. 5 U.S.C. § 552(b)(7)(D). As FOIA exemptions must be narrowly construed, an agency is not entitled to a presumption of confidentiality with respect to its sources. U.S. Dep't of Justice v. Landano, 508 U.S. 165, 181, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993). The exemption's applicability, therefore, "depends upon whether the particular source who furnished the information at issue was granted confidentiality, either expressly or by implication." Mays v. DEA, 234 F.3d 1324, 1328 (D.C.Cir.2000).
There is no question here that the information provided by the FBI was compiled for law enforcement purposes, by a criminal law enforcement authority and during the course of a criminal investigation. Plaintiff, however, asserts that the Hardy Declaration is insufficiently detailed for plaintiff or this Court to determine whether the information was provided by a confidential source and on a confidential basis, either expressly or by implication. Pl. Opp'n at 34-38. I disagree.
With respect to information withheld based on an express grant of confidentiality, the Hardy Declaration again more than sufficiently provides a basis on which to determine that the information was properly withheld under the exemption. Having explained the brutality of the underlying crimes, the Hardy Declaration explains that the information provided by the third parties was "specific" and "singular in nature" and led to plaintiff's arrest. Hardy Decl. ¶ 80. As this Court has noted, "[t]he nature of the crime investigated and informant's relation to it are the most important factors in determining whether implied confidentiality exists." Amuso v. U.S. Dep't of Justice, 600 F.Supp.2d 78, 100 (D.D.C.2009). Due to the violent nature of the crimes, it is reasonable to conclude that these sources disclosed information in confidence due to the fear of reprisal. See Mays, 234 F.3d at 1329.
Thus, this Court finds that defendants have demonstrated that the information withheld pursuant to both an express and an implied grant of confidentiality logically falls within Exemption 7(D).
For all of the foregoing reasons, the Court GRANTS defendants' Motion for Summary Judgment [# 15] and DENIES plaintiff's Cross-Motion for Partial Summary Judgment [# 18]. An Order consistent with this decision accompanies this Memorandum Opinion.