COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
Plaintiff Lawrence Rosenberg submitted Freedom of Information Act requests to various federal agencies seeking, among other things, records related to the raid of Agriprocessors, Inc., meatpacking plant and the subsequent prosecution of Sholom Rubashkin whom Plaintiff represents. Dissatisfied with the agencies' responses to his request, Plaintiff filed suit against United States Immigration and Customs Enforcement, the United States Marshals Service, the Executive Office for United States Attorneys, and the Federal Bureau of Investigation. On July 22 and 23, 2013, the Court granted the Motions to Dismiss or, in the alternative, for Summary Judgment filed by United States Immigration and Customs Enforcement, the Executive Office for United States Attorneys, and the United States Marshals Service. See Order (July 22, 2013), ECF No. [64]; Order (July 23, 2013), ECF No. [66]. On August 11, 2013, the Court granted in part the FBI's Motion for Summary Judgment and denied in part the Plaintiff's Cross-Motion for Summary Judgment, but held in abeyance the parties' motions as to the adequacy of the agency's search and the agency's application of Exemption 7(D), as well as the agency's application of Exemptions 6, 7(C), and 7(E) on a specific set of pages identified by the Court. See Order (Aug. 11, 2013), ECF. No [69]. The Court requested supplemental briefing on the application of the exemptions held in abeyance. Id.
Presently before the Court is the FBI's [71] Renewed Motion for Summary Judgment. Upon consideration of the pleadings,
Sholom Rubashkin managed a kosher meatpacking company in Postville, Iowa, named Agriprocessors, Inc., which at one point employed over one thousand individuals. United States v. Rubashkin, 655 F.3d 849, 853 (8th Cir.2011). In May 2008, Immigration and Customs Enforcement raided the plant, and arrested nearly four hundred employees for immigration violations, bringing criminal charges against most of the arrestees. Id. at 854. "Around that time," the United States Attorney's Office in the Northern District of Iowa informed Mr. Rubashkin that he was the target of a federal investigation for financial and immigration crimes. Id. Mr. Rubashkin was arrested in November 2008 and charged by indictment with 163 counts, including fourteen counts each of bank and wire fraud, and sixty nine counts of harboring undocumented aliens for profit. Mr. Rubashkin was eventually convicted of seventy one counts of bank, mail, and wire fraud, money laundering, and false statements to bank, in addition to fifteen counts of willful violations of orders of the Secretary of Agriculture. Id. Relying on documents obtained through a Freedom of Information Act request submitted prior to his trial, Mr. Rubashkin subsequently moved for a new trial, or for discovery, which the trial court denied. Id. at 856. The Eighth Circuit affirmed the denial of Mr. Rubashkin's motion for a new trial, as well as his underlying conviction and sentence on September 16, 2011. Id. at 869.
By letter dated September 28, 2011, Plaintiff, an attorney who represents Mr. Rubashkin and his wife and their children, submitted a Freedom of Information Act ("FOIA") request to the FBI seeking, among other things: (1) "any and all information relating to the raid of Agriprocessors, Inc., a meatpacking plant in Postville, Iowa, on May 12, 2008 ("the raid") and the subsequent prosecution of Sholom Rubashkin"; (2) "any and all information relating to actions proposed to take place in year 2000 against Agriprocessors, Inc., as documented in the Des Moines Register's August 6, 2011 article, `Immigrant Raid Halted in 2000 on Election Fear, Ex-Agent Says'"; (3) "any and all information relating to any actions considered to take place against Iowa Turkey Products, Inc. of Postville, IA"; (4) "any and all information relating to the class action case Salazar v. Agriprocessors, 527 F.Supp.2d 873 (N.D.Iowa 2007)"; and (5) any and all documents reflecting communications between "any government agency or official" and over 101 individuals regarding Mr. Rubashkin or Agriprocessors. Hardy Decl., Ex. A (Pl.'s FOIA Request), ECF No. [46-1], at 2-8. The Plaintiff's request included
The FBI acknowledged the Plaintiff's request by letter dated October 5, 2011, assigning the request number 1174698. Def.'s Stmt. ¶ 3.
The Plaintiff filed suit on March 23, 2012. On September 7, 2012, the FBI processed the pages identified as potentially responsive to the Plaintiff's request. Hardy Decl. ¶ 11. Of the 1,233 pages initially identified, 257 were found to be duplicates. Second Hardy Decl., ECF No. [55-1], ¶ 8; Hardy Decl. ¶ 4. The FBI released 39 pages in full and 322 pages in part. Hardy Decl. ¶ 4. One hundred and fifty five pages were withheld in their entirety pursuant to various FOIA exemptions. Id. The remaining 450 pages were withheld because they are court materials sealed by the United States District Court for the Northern District of Iowa. Id.
The parties filed cross-motions for summary judgment in the first part of 2013. The FBI argued that it had conducted an adequate search for documents potentially responsive to the Plaintiff's FOIA request and that it properly withheld certain information from Plaintiff pursuant to FOIA exemptions 3, 6, 7(C), 7(D), and 7(E). Although the Court granted summary judgment on several of the FBI's arguments, the Court found that the FBI had failed to demonstrate that it conducted an adequate search for potentially responsive documents, and also failed to justify why certain information was redacted pursuant to FOIA exemptions 6, 7(C), and 7(E). See Mem. Op. (Aug. 11, 2013), ECF No. [70], at 9-12, 15-21, 23-26. Consequently, the Court ordered the FBI to supplement its motion for summary judgment regarding the adequacy of its search and its application of FOIA exemptions 6, 7(C), and 7(E) to justify specific redactions in certain responsive documents. See Order (Aug. 11, 2013), at 2. In addition, because the Court found the Plaintiff did not fully articulate his challenge to the FBI's invocation of Exemption 7(D) until his reply brief, the Court provided the FBI an opportunity to supplement its showing as to the use of Exemption 7(D). See Mem. Op. (Aug. 11, 2013), at 22-23; Order (Aug. 11, 2013), at 2. The FBI filed its present Renewed Motion for Summary Judgment in response to the Court's August 11, 2013, Order requesting supplemental briefing.
Congress enacted FOIA to "pierce the veil of administrative secrecy and to open agency action to the light of
When presented with a motion for summary judgment in this context, the district court must conduct a "de novo" review of the record, which requires the court to "ascertain whether the agency has sustained its burden of demonstrating that the documents requested ... are exempt from disclosure under the FOIA." Multi Ag Media LLC v. Dep't of Agriculture, 515 F.3d 1224, 1227 (D.C.Cir.2008) (citation omitted). The burden is on the agency to justify its response to the plaintiff's request. 5 U.S.C. § 552(a)(4)(B). "An agency may sustain its burden by means of affidavits, but only if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Multi Ag Media, 515 F.3d at 1227 (citation omitted). "If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." Am. Civil Liberties Union v. U.S. Dept of Defense, 628 F.3d 612, 619 (D.C.Cir.2011) (citations omitted). "Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail." Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 509 (D.C.Cir.2011) (citation omitted). Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations "show[] 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). With these principles in mind, the Court turns to the merits of the FBI's renewed motion for summary judgment.
The FBI seeks summary judgment on the grounds that it conducted an adequate search for responsive documents and properly withheld information pursuant to FOIA Exemption 7(D) and Exemptions 6, 7(C), and 7(E) on the pages identified by the Court in its August 2013 Order.
"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-Lucena v. U.S. Coast Guard, 180 F.3d 321, 390 (D.C.Cir.1999) (citation omitted). "At summary judgment, a court may rely on [a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Ancient Coin Collectors Guild, 641 F.3d at 514 (citation and internal quotation marks omitted). "The agency cannot limit its search to only one or more places if there are additional sources that are likely to turn up the information requested." Valencia-Lucena, 180 F.3d at 391 (citation and internal quotation marks omitted). Ultimately, the adequacy of a search is "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) (citation omitted).
In its August 2013 Memorandum Opinion, the Court found the two declarations prepared by David Hardy averring to the adequacy of the FBI's search lacking in several respects. First, neither Hardy declaration demonstrated that the FBI's search was "tailored to the nature" of the Plaintiff's request. Mem. Op. (Aug. 11, 2013), at 11. Specifically, the Court noted that while declarations stated that the FBI searched its Central Records System ("CRS") for responsive documents, it did not aver that the CRS is the only collection of files likely to contain responsive documents. Id. Moreover, even when Plaintiff challenged the adequacy of the FBI's search for emails, the FBI did not assert in the Second Hardy declaration that the FBI searched all systems of records "likely to possess the requested information." Id. In addition, the Court found that neither Hardy declaration "even attempts to establish that the requested communications between the FBI and various third parties prior to or after the raid are likely to be found in the [CRS]." Id. at 12.
With its Renewed Motion for Summary Judgment, the FBI now submits a third Hardy Declaration that offers a more complete justification of the adequacy of the FBI's search. Accordingly, the Court finds that the FBI has now provided sufficient evidence that its search was adequate. As explained in the FBI's first two sworn declarations, the FBI conducted a search of the CRS utilizing the "phonetic sounds of the last, middle, and first names relating to Sholom Mordechai Rubashkin, Agriprocessors Inc., and Iowa Turkey Products Inc. Hardy Decl. ¶ 12, 18; Second Hardy Decl. ¶ 5. "The FBI also used the plaintiff's date of birth to facilitate the identification of responsive records." Hardy Decl. ¶ 18. The CRS "enables the FBI to maintain all information which it has acquired in the course of fulfilling its mandated law enforcement responsibilities" and includes "administrative, applicant, criminal, personnel, and other files compiled for law enforcement purposes." Id. ¶ 12. The files are indexed according to "main" entries, that is, "the name corresponding with a subject of a file," and "reference" entries, which reflect "a mere mention or reference to an individual, organization, or other subject matter, contained in a document located in another `main' file on a different subject matter." Id. ¶ 13. After Plaintiff filed suit, the FBI conducted a search for any cross-references
Importantly, in the Third Hardy Declaration, the FBI explains that "[b]ased on the nature of the records sought by plaintiff, the CRS is the only FBI system of records where responsive records would reasonably reside absent additional information pointing to records that may reside outside the CRS." Third Hardy Decl. ¶ 6. The FBI explains that the records Plaintiff sought to access pertain to "a specific law enforcement raid and subsequent prosecution," which the FBI characterizes as "criminal investigative records." Id. Such records "would be indexed in, and retrieved by, a search of the CRS." Id. Most importantly, the FBI explains, "there was no factual basis for the FBI to conclude that responsive records would reside in any databases or systems other than the CRS" and, furthermore, "the records located by the FBI through its automated search of the CRS also provided no indication that other potentially responsive records would exist in any other database or system, including the Electronic Surveillance ("ELSUR") indices." As a result, the FBI concludes, by searching the CRS in this case, it "performed a search for responsive records in the only system where such records would reasonably reside." Id. Finally, the FBI declares that any relevant third party communications "would logically be indexed in the criminal investigative file involved in this case," thus "the searches of the CRS that the FBI performed would have likely uncovered documents indexed to any third party involved in the records at issue." Id. ¶ 7.
Although the FBI does not offer the strongest justification for the adequacy of its search, the Court finds the FBI has now sufficiently shown that all files reasonably likely to contain responsive materials were searched. See Mobley v. C.I.A., 924 F.Supp.2d 24, 44 (D.D.C. 2013) (finding FBI's justification of search adequate, if "thin," where the FBI averred that "[g]iven the broad search of the comprehensive CRS system and the ELSUR indices ... [the FBI's acting FOIA chief] determined that there is no reasonable basis to conclude that responsive records are reasonably likely to be located by further searches of shared drives."). Plaintiff's arguments to the contrary are unavailing. Plaintiff first contends that the FBI contradicted its own "implicit premise that criminal investigative records are retained only in the CRS" when it stated that "information on subjects whose electronic and/or voice communications have been intercepted as a result of ... electronic surveillance conducted by the FBI are separately maintained in the FBI's ELSUR database." Pl.'s Opp'n. at 2. Moreover, Plaintiff argues, the Third Hardy Declaration "does not exclude the possibility that responsive documents are likely to exist in the hard-copy files or on the hard drives of the agents involved in investigating Sholom Rubashkin and/or Agriprocessors, Inc." Id. Plaintiff thus faults the FBI for not searching for records in these locations. Plaintiff, however, misconceives the Third Hardy Declaration. The FBI's declaration does not state that criminal investigative records are retained only in the CRS. It states that the CRS is the only system where responsive records would reasonably reside, absent additional indicators that would point to potentially responsive records in other locations. But the FBI avers that it found no factual basis in Plaintiff's detailed FOIA request that would indicate potentially responsive records residing outside the CRS. Moreover, none of the records located in the search of the CRS in any way indicated that records responsive to Plaintiff's request
Plaintiff next argues that the FBI's refusal "to search hard-copy files, hard drives, or the ELSUR or other databases" "merely because information in one database, the CRS, did not point toward those other separate sources" is "simply wrong" because the reasonableness of a search "is judged by `the method of the search rather than its results.'" Pl.'s Opp'n. at 3. However, Plaintiff misinterprets the meaning of this well-worn rule. It is true that the adequacy of a FOIA search is not to be judged by its results, but only in so far as a plaintiff may seek to measure a search's adequacy based purely on the number of results obtained or the nature of the results. See Iturralde, 315 F.3d at 315 (finding the failure of an agency "to turn up one specific document in its search does not alone render a search inadequate"); Ancient Coin Collectors Guild, 641 F.3d at 514 (rejecting plaintiff's argument that agency search was inadequate because "it turned up only a few emails"). On the contrary, courts have consistently held that the results of a search are relevant in so far as the content of the responsive records may indicate potentially responsive records in other unsearched locations. For example, in
Plaintiff's final argument is that the FBI makes no attempt to square its assertion that "any relevant communications between third parties ... would logically be indexed in the criminal investigative file" maintained in the CRS with its own admission that the fruits of electronic searches are maintained in the ELSUR database, or with the possibility that responsive records remain in hard-copy files or on hard drives. Pl.'s Opp'n. at 4. This argument is no more than a reiteration of Plaintiff's first argument this time applied to records of third party communications. As the FBI's search of the CRS — the database most likely to contain these third party communications — did not uncover any record indicating that potentially responsive records could be found in other locations and Plaintiff has offered no reasoned argument to the contrary, the Court finds the FBI searched all files reasonably likely to contain records of third party communications.
In short, the FBI conducted a broad search for potentially responsive records in the database most likely to contain such records and had no factual basis — before or after conducting that search — to believe that responsive documents were likely to be found in any other location. All of Plaintiff's challenges to the adequacy of the FBI's search for responsive records are insufficient to defeat the FBI's entitlement to summary judgment on this issue. Accordingly, the Court finds the FBI's search was reasonably calculated to uncover all responsive documents. See Oglesby v. Department of Army, 920 F.2d 57, 68 (D.C.Cir.1990) (holding that in order for a search to be found adequate an agency's affidavits should show "that the search method was reasonably calculated to uncover all relevant documents" and "identify the terms searched or explain how the search was conducted" and "explain in its affidavit that no other record system was likely to produce responsive documents.").
In its August 2013 Memorandum Opinion and Order, the Court granted summary judgment in the FBI's favor with respect to the FBI's withholding of information pursuant to FOIA Exemptions 3, and, in most cases, Exemptions 6 and 7(C), and 7(E). The Court, however, held in abeyance the parties' motions with respect to the FBI's application of Exemptions 6 and 7(C) on twenty-seven specific pages, the FBI's application of Exemption 7(D), and the FBI's application of Exemption 7(E) on five specific pages. The Court requested the FBI supplement its Motion for Summary Judgment in respect to the withholdings held in abeyance. The FBI subsequently filed the Renewed Motion for Summary Judgment presently before the Court. In response to the FBI's Renewed Motion, Plaintiff continues to contest the FBI's invocation of FOIA exemptions 6
FOIA Exemption 6 provides that an agency may withhold "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). Similarly, Exemption 7(C), in relevant part, permits an agency to withhold "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information... could reasonably be expected to constitute an unwarranted invasion of personal privacy." Id. § 552(b)(7)(C). "The courts have construed this provision as permitting exemption if the privacy interest at stake outweighs the public's interest in disclosure." Nation Magazine, Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 893 (D.C.Cir.1995). As the Plaintiff does not dispute the fact that the records at issue in this case were compiled for law enforcement purposes as required for Exemption 7(C), the Court has "no need to consider Exemption 6 separately because all information that would fall within the scope of Exemption 6 would also be immune from disclosure under Exemption 7(C)." Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1173 (D.C.Cir. 2011).
In response to the parties' prior cross-motions for summary judgment, the Court reviewed in camera the pages on which the FBI invoked Exemptions 6 and 7(C). The Court found that on twenty-seven specific pages "the FBI redacted information describing actions taken (or not taken) by third parties that does not appear to identify any third party whose identity might be protected by Exemption 6 or Exemption 7(C)." Mem. Op. (Aug. 11, 2013), at 16. Therefore, the Court ordered the FBI to either revise its redactions or provide a supplemental explanation of the use of Exemptions 6 and 7(C) with respect to the pages identified by the Court. Id. The Court found the FBI was otherwise entitled to summary judgment with respect to its use of Exemptions 6 and 7(C). Id. at 17.
In the Third Hardy Declaration accompanying the FBI's Renewed Motion for Summary Judgment, the FBI explains that it reviewed the pages identified by the Court and "determined additional information could be segregated for release, but only to the extent that release of the information would not reveal the identity of the third party." Third Hardy Decl. ¶ 10. As to Rubashkin-934 and Rubashkin-935, however, the FBI maintained all redactions because "the mosaic effect of disclosure of pieces of information could potentially lead to the identification of the third parties." Id. ¶ 10 n.2. The FBI attached the revised version of the pages at issue to the Third Hardy Declaration. See Id. Ex. A. Plaintiff argues that, despite the revisions, the FBI continues to withhold "extensive information" that could not be used to identify a third party. Pl.'s Opp'n. at 5. Finally, Plaintiff argues that summary judgment should not be granted in favor of the FBI because "the FBI provides no further details or explanation regarding the information it continues to withhold under Exemptions 6 and 7(C)" in contravention of the Court's Order. Id. at 4-5.
The Court finds that the FBI has properly revised its redactions on all except
Otherwise, the Court agrees that the FBI has properly revised the pages identified in the Court's August 2013 Order such that only information that could identify a third party protected by Exemptions 6 and 7(C) is redacted. The Court disagrees with Plaintiff's argument that, in violation of the Court's August 2013 Order, "the FBI provides no further details or explanation regarding the information it continues to withhold under Exemptions 6 and 7(C)." The Third Hardy Declaration states that the FBI released information "to the extent that release of the information would not reveal the identity of the third party." Third Hardy Decl. ¶ 10. The logical understanding of this declaration is that the redactions the FBI maintained on the pages at issue withheld information that identifies third parties. The Court's in camera review of these pages confirms this understanding. Moreover, for Rubashkin-934-935, the only two pages where the FBI did not release additional information, the FBI explains that it maintained these redactions because "the mosaic effect of disclosure of pieces of information could potentially lead to the identification of the third parties." Id. ¶ 10 n. 2. Accordingly, the Court finds the FBI has offered sufficient justification for the redactions it has maintained. See Am. Civil Liberties Union, 628 F.3d at 619 ("If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone."). The court finds the FBI's redactions particularly appropriate and necessary to protect the privacy interests of third parties given the small community in which the crime that is the subject of Plaintiff's FOIA request took place. See Concepcion v. F.B.I., 606 F.Supp.2d 14, 42 (D.D.C.2009) (upholding the redaction of information under Exemption 7(C) "that could possibly identify [the source], including dates and places where he/she has been"); Singh v. F.B.I., 574 F.Supp.2d 32, 49 (D.D.C.2008) (upholding the redaction of information that "would allow a person familiar with the facts and circumstances of the investigation to identify the individuals"); Alirez v. NLRB, 676 F.2d 423, 428 (10th Cir. 1982) (finding that deletion of names and other identifying data pertaining to small group of co-workers was simply inadequate to protect them from embarrassment or reprisals because requester could still possibly identify individuals).
In addition, the Court notes that on Rubashkin-323, the FBI cited only Exemptions 6 and 7(C) even though in the Hardy Declarations, this page is listed as a page on which information has been withheld pursuant to Exemption 7(D). See Hardy Decl. ¶ 46 n.19; Third Hardy Decl. ¶ 12. Upon the Court's in camera review of this page, the Court confirmed that
In regards to an agency's invocation of Exemption 7(D) to protect the identities of, and information received from, individuals who provided information to the agency and/or local law enforcement during the course of the investigation into the criminal activities, the D.C. Circuit has held that
Roth, 642 F.3d at 1184. "When no express assurance of confidentiality exists, courts consider a number of factors to determine whether the source nonetheless `spoke with an understanding that the communication would remain confidential.'" Id. (quoting U.S. Dep't of Justice v. Landano, 508 U.S. 165, 172, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993)). The relevant factors include "`the character of the crime at issue,' `the source's relation to the crime,' whether the source received payment, and whether the source has an `ongoing relationship' with the law enforcement agency and typically communicates with the agency `only at locations and under conditions which assure the contact will not be noticed.' Id. (quoting Landano, 508 U.S. at 179, 113 S.Ct. 2014). "The nature of the crime investigated and informant's relation to it are the most important factors in determining whether implied confidentiality exists." Singh, 574 F.Supp.2d at 50 (citing Landano, 508 U.S. at 179-80, 113 S.Ct. 2014). "The pertinent question is whether the violence and risk of retaliation that attend this type of crime warrant an implied grant of confidentiality for such a source." Mays v. Drug Enforcement Admin., 234 F.3d 1324, 1329 (D.C.Cir.2000).
In the first Hardy Declaration, the FBI explained that the individuals at issue in this case "were interviewed under circumstances in which an assurance of confidentiality may be implied since the individuals were reporting on fraudulent financial activities concerning the plaintiff and others," and "[i]f the interviewee's
In its Renewed Motion for Summary Judgment, the FBI now argues that "given the character of the crime at issue (involving long term incarceration [and financial fraud]), the source's relation and proximity to the crime, the circumstances under which they were interviewed, and the risk assumed by these individuals, it is reasonable to conclude that these individuals would have provided the information under an implied promise of confidentiality." Def.'s Renewed Mot. for Summ. J. at 10-11. Specifically, the FBI argues that although the individuals who provided information were not paid sources, "they were in a position to obtain valuable information due to their access and close proximity to the criminal elements involved in these crimes." Third Hardy Decl. ¶ 11. As the information these individuals provided "aided in the conviction of perpetrators who were exposed to severe penalties, including long term incarceration," they assumed an "inherent risk" "by providing information to law enforcement in this context." Id. Furthermore, the FBI asserts, "the information provided by these individuals is singular in nature and it is reasonable to infer that given their access and close proximity [] it was provided with the inherent understanding that neither their identities, nor the information they provided, would be disclosed to the public. Id. The FBI concludes that "given these circumstances, it is reasonable to conclude that these individuals would reasonably fear that disclosure of their identity would place them in danger and/or would likely subject them to harassment or reprisal." Id.
Plaintiff responds that the FBI does not offer any developed factual or legal arguments to demonstrate that it has met the Landano factors for establishing that the individuals the FBI seeks to protect were implicitly assured confidentiality. Pl.'s Opp'n. at 6. Plaintiff contends that the FBI only offers "conclusory assertions that the alleged crimes involved fraudulent financial activities and that the interviewees were interviewed under circumstances in which an assurance of confidentiality may be implied." Id. These assertions, Plaintiff argues, are insufficient to discharge the FBI's burden. Id.
Plaintiff is correct that "[u]nder our case law, agencies invoking a FOIA exemption must provide a specific, detailed explanation of why the exemption applies to the withheld materials." Roth, 642 F.3d at 1185 (citing Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973)). "Reviewing documents in camera is no `substitute for the government's obligation to provide detailed public indexes and justifications whenever possible.'" Id. (quoting Lykins v. U.S. Dep't of Justice, 725 F.2d 1455, 1463 (D.C.Cir.1984)). Nevertheless, courts in this circuit have recognized
The Court notes at the outset that every instance in which the FBI has invoked Exemption 7(D) to justify its withholding information it has also invoked Exemptions 6 and 7(C). Exemption 7(D) is more expansive than 7(C) because it covers "records or information compiled by criminal law enforcement authorities in the course of criminal investigations if their release could reasonably be expected to disclose the identity of, as well as information provided by, a confidential source." Computer Prof'ls for Social Responsibility v. United States Secret Serv., 72 F.3d 897, 905 (D.C.Cir.1996) (emphasis added). Exemption 7(C) only protects the disclosure of identifying information. Accordingly, the Court shall first consider the FBI's invocation of Exemption 7(D).
Having undertaken a thorough in camera review of the information withheld by the FBI pursuant to Exemption 7(D), the Court concludes that for most, but not all, of the redacted documents where the FBI has invoked Exemption 7(D), the FBI has met its burden of establishing that the individuals whose identities and information the FBI withheld provided information to the FBI under an implied assurance of confidentiality. The Court recognizes that this is not a case where the violent nature of the crime at issue — for example, homicide, drug trafficking, gang-related crime, terrorism, or government overthrow — "characteristically supports an inference of confidentiality" that a court can generically apply to all informants. Landano, 508 U.S. at 177, 113 S.Ct. 2014. Here, the crime about which the informants were providing information was a non-violent financial crime. Still, the Court finds that the severity of the crime and the close association that certain informants had with Mr. Rubashkin, Agriprocessors, or Mr. Rubashkin's fraudulent activity permit a reasonable inference that for these informants "the communication in all likelihood would not have been made if confidentiality had not been assured." Ortiz v. U.S. Dep't of Health and Human Services, 70 F.3d 729, 734 (2nd Cir.1995) (quoting Brant Const. Co., Inc. v. U.S.E.P.A., 778 F.2d 1258, 1264 (7th Cir.1985); see also Keys v. United States Dep't of Justice, 830 F.2d 337, 345 (D.C.Cir.1987) (concluding an implied assurance of confidentiality arose, in part because "it is reasonable to infer from the circumstances that its absence would impair [defendant's] ability to elicit the information.").
Specifically, as the FBI averred in its Third Hardy Declaration, these informants
Accordingly, the Court holds that the FBI properly withheld information pursuant to Exemption 7(D) on the following pages: Rubashkin-5-10; Rubashkin-21-29; Rubashkin-39-42; Rubashkin-52; Rubashkin-55-57; Rubashkin-61-62; Rubashkin-65-69; Rubashkin-78-79; Rubashkin-90-93; Rubashkin-97-10 1; Rubashkin-104-110; Rubashkin-123-13 6; Rubashkin-148-151; Rubashkin-167-170; Rubashkin-181-188; Rubashkin-230-241; Rubashkin-308-309; Rubashkin-312-313; Rubashkin-316-322; Rubashkin-324-340; Rubashkin-383-389; Rubashkin447-450; Rubashkin-558-561; Rubashkin-645
For several documents, specifically, Rubashkin-142-147; Rubashkin-738-739; Rubashkin-880; Rubashkin-924, the Court found it unnecessary to consider the FBI's invocation of Exemption 7(D) "because the limited amount of information that the FBI withheld based on this rationale also implicates personal privacy interests and thus falls within the scope of Exemption
However, the Court finds that on Rubashkin-778-792 the FBI did not meet its burden of establishing that the individuals whose information was redacted provided information to the FBI with an implied assurance of confidentiality. Nothing about the circumstances in which these individuals were interviewed or about their relationship to the crime indicates that they would not have provided information to the FBI without an understanding that their information and identity would remain confidential. Accordingly, the Court denies summary judgment to the FBI and grants summary judgment in Plaintiff's favor as to the FBI's invocation of Exemption 7(D) on these pages. The Court does find, however, that much of the information on these fifteen pages was properly withheld pursuant to Exemption 7(C), which the FBI simultaneously invoked. Thus, the Court orders the FBI to release all information on these fifteen pages, except for the information that identifies third parties protected under 7(C). An Appendix identifying the information to be released to Plaintiff on these fifteen pages is attached to this opinion.
Exemption 7(E) authorizes an agency to withhold
5. U.S.C. § 552(b)(7)(E). In response to the parties' prior cross-motions for summary judgment, the Court held that the FBI had met its burden of showing that Exemption 7(E) applied, except as to the information redacted from Rubashkin-56, Rubashkin-139, Rubashkin-157, and Rubashkin734-735. The Court found it "unclear... how the information on these [five] pages reflects internal FBI methodology, or how the disclosure of this information would enable perpetrators to alter their behavior and thwart detection." Mem. Op. (Aug. 11, 2013), at 25.
In its Renewed Motion for Summary Judgment, the FBI maintains that its invocation of Exemption 7(E) on these pages was proper. Def.'s Renewed Mot. for Summ. J. at 13. Specifically, as to Rubashkin-734-735, the FBI argues that the redacted information was properly withheld because it
Plaintiff faults the FBI's explanation for "merely assert[ing], without explanation, that disclosure of these questions could somehow `permit[] criminals to predict investigative questions, and to adjust their responses and behaviors to avoid detection or mislead investigations." Pl.'s Opp'n. at 7. Plaintiff further argues that "the FBI acknowledges that these questions were tailored to the specific allegations against Mr. Rubashkin and others in one specific case," thus, it "remains unclear how disclosure of these questions might contribute to some future obstruction of justice crime." Id.
The Court finds the FBI has now met its burden of establishing that 7(E) exempts the series of questions withheld on Rubashkin-734-735. Release of the redacted questions would disclose what the FBI deems relevant to investigating obstruction of justice cases. Furthermore, the redacted information includes the FBI's rationale for one particular question as well as recommendations of follow-up questions. As for the risk of circumvention of the law if the FBI's investigative technique is disclosed, the Court notes that "a highly specific burden of showing how the law will be circumvented" is not required; instead, "exemption 7(E) only requires that [the agency] `demonstrate[] logically how the release of [the requested] information might create a risk of circumvention of the law.'" Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C.Cir.2009) (quoting PHE, Inc. v. Dep't of Justice, 983 F.2d 248, 251 (D.C.Cir.1993). Here, the FBI has logically and reasonably explained how releasing what the FBI deems relevant to obstruction of justice investigations would allow criminals to "adjust their responses and behavior to circumvent the law." Third Hardy Decl. ¶ 15. As the FBI's declaration sets out the type of questions involved and reasonably explains how disclosure of these questions could create a risk of circumvention of the law, the Court concludes that the records were properly withheld under Exemption 7(E). See American Immigration Lawyers Ass'n v. U.S. D.H.S, 852 F.Supp.2d 66, 79 (D.D.C.2012) (upholding agency's withholding pursuant to Exemption 7(E) of Immigration and Customs Enforcement questionnaire used by site inspectors to document their personal observations because the information withheld would provide "guidance" to those looking to circumvent the law, which would thwart future law enforcement efforts). Accordingly, the Court grants summary judgment in the FBI's favor as to the withholding of information on Rubashkin-734-735 pursuant to Exemption 7(E).
As to Rubashkin-56, Rubashkin-139, and Rubashkin-157, the FBI asserts that redactions were necessary to "protect information pertaining to various FBI investigative techniques and/or procedures used by the FBI in conducting criminal and national security related investigations, including mechanisms available pursuant to the Bank Secrecy Act ("BSA")." Third Hardy Decl. ¶ 16. Specifically, the FBI explains that the BSA mandates that
Plaintiff argues that the FBI's support for its withholding information on these three pages is insufficient because the FBI "does not provide any factual support for its barebones assertion that these materials are protected by the Act." Pl.'s Opp'n. at 8. Plaintiff faults the FBI for "not even identify[ing], in generic terms, the information redacted or the type of report involved, even though the FBI acknowledges that "the nature or type of reports which can be obtained pursuant to the [Act] are known to the public." Id. Moreover, Plaintiff argues, "the FBI does not explain how disclosure of the redacted information would permit circumvention of the law or evasion of FBI investigative efforts in future cases." Id.
The Court finds the information withheld on Rubashkin-56, Rubashkin-139, and Rubashkin-157 is most firmly exempt under Exemption 3.
While the FBI did not raise Exemption 3 as a justification for withholding information on these three pages until its Reply brief, the Court finds the FBI has not waived raising Exemption 3. In Cuban v. SEC, 795 F.Supp.2d 43, 61-63 (D.D.C.2011), the district court found information withheld by the Securities and Exchange Commission to be properly withheld pursuant to Exemption 3 even though the agency did not invoke Exemption 3 until its motion for reconsideration. The district court was willing to consider Exemption 3's applicability in part because the exemption had been raised prior to the
Similarly, here, the FBI raised the applicability of Exemption 3 in its Reply supporting its Renewed Motion for Summary Judgment and thus prior to the completion of the district court proceedings. Moreover, the FBI's initial Renewed Summary Judgment brief and the Third Hardy Declaration discussed in detail how the BSA exempts the information at issue here from FOIA disclosure. See Def.'s Renewed Mot. for Summ. J. at 14-15; Third Hardy Decl. ¶ 16. In his Opposition to Defendant's Renewed Motion for Summary Judgment, Plaintiff specifically engages the FBI's argument about the applicability of the BSA's exemptions and contends that the FBI has failed to present sufficient factual support for its assertion that the redacted materials are protected by the BSA. See Pl.'s Opp'n. at 8. While the FBI's discussion of the BSA was initially offered as a justification for the applicability of Exemption 7(E), the FBI's argument regarding the applicability of the BSA's exemptions as a basis for Exemption 3 is no different. Thus, the Court finds Plaintiff had an opportunity to respond to the argument that is the foundation of the FBI's invocation of Exemption 3.
Finally, the Court must consider whether the FBI has released all reasonably segregable information to Plaintiff. FOIA instructs that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b); see also Mead Data Ctr., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260 (D.C.Cir.1977) ("[N]on-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions."). In the Third Hardy Declaration, Mr. Hardy avers that "after extensive
For the foregoing reasons, the FBI's [71] Renewed Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART, and the FBI's [47] Motion for Summary Judgment and Plaintiff's [51] Cross-Motion for Summary Judgment, portions of which were previously held in abeyance, are DENIED IN PART and GRANTED IN PART. Specifically, the FBI's motions for summary judgment are GRANTED and Plaintiff's cross-motion DENIED as to the adequacy of the FBI's search. The FBI's motions are also GRANTED and Plaintiff's cross-motion DENIED as to the information the FBI withheld pursuant to Exemptions 6 and 7(C) on twenty-six of the pages identified in the Court's August 2013 Order.
An appropriate Order accompanies this Memorandum Opinion.
The Court orders that the following information be
Pl.'s Opp'n. at 3. Consequently, Plaintiff contends, the Court still has no way to make a determination as to whether the ELSUR contains documents responsive to Plaintiff's request. Id. However, in so arguing, Plaintiff ignores the fact that the Third Hardy Declaration explicitly states that based on the factual nature of Plaintiff's request and the information in the responsive records retrieved from the CRS, "there was no indication that other potentially responsive records would exist in any other database or system, including ... ELSUR." Third Hardy Decl. ¶ 6 (emphasis added). The Court finds that the Third Hardy Declaration sufficiently addresses and resolves Plaintiff's concern that there may be documents responsive to Plaintiff's request in the ELSUR.
