BERYL A. HOWELL, United States District Judge.
The plaintiff, John A. Ford, filed this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, demanding that the United States Department of Justice ("DOJ"), the Federal Bureau of Investigation ("FBI") and the Executive Office for United States Attorneys ("EOUSA") "hand over records concerning Plaintiff," in response to his multiple FOIA requests, Compl. at 1, ECF No. 1, and that the FBI amend records maintained in its Central Records System ("CRS"), pursuant to the Privacy Act, 5 U.S.C. § 552a, id. at 13. Pending before the Court is the defendants' Motion for Summary Judgment, ECF No. 18, which, for the reasons discussed below, is granted.
The plaintiff "is currently serving a 240 month sentence ... after pleading guilty to one count of bank robbery by violence, force, and intimidation in connection with the robbery of the US Bank at 1586 North Rand Road, Palatine, Illinois on November 20, 2007." Mem. of P. & A. in Support of U.S. Dep't of Justice's Mot. for Summ. J. ("Defs.' Mem."), Decl. of David M. Hardy ("First Hardy Decl.") ¶ 5. In 2014 and 2015, the plaintiff submitted over ten FOIA requests to the FBI and EOUSA. The searches conducted by the FBI and EOUSA and the responses provided to the plaintiff's requests are described below.
The plaintiff's multiple FOIA requests to the FBI "sought specific items from his investigative main file (91A-CG-128167) or associated sub[-]files." First Hardy Decl. ¶ 46. Since the plaintiff "identified the specific file number" in which responsive records would be located, the FBI's declarant states that staff "searched the CRS only to confirm the file at issue was [the] plaintiff's investigative file." Id. ¶ 45. The CRS
The FBI's declarant described the agency's practice is "to search the [CRS] to determine if the FBI has records about a particular subject in response to most [FOIA] requests." Id. Due to the nature of the plaintiff's requests for items, staff did not limit the search to CRS but also "retrieved the physical file, including sub-files[,] and manually search[ed] for the specific items" identified by the plaintiff in his requests. Id. ¶ 46. The declarant explained that "the FBI was able to locate almost all of the specific items ... requested," with the exception of "the item related to a dust mask[.]" Id.
The EOUSA's search was likewise guided by the plaintiff's request. He indicated that his criminal trial took place in the Northern District of Illinois and, consequently, the EOUSA referred the matter to the United States Attorney's Office for that district ("USAO/ILN"), where its FOIA Contact conducted the search for records responsive to Requests 2012-3780, 2014-0292 and 2015-0316. See Jolly Decl. ¶¶ 28, 30. The search began with LIONS, a "computer tracking system used by United States Attorney's Offices to track cases and retrieve files pertaining to cases and investigations." Id. ¶ 28. Through LIONS, the declarant explained, "the user can access databases ... to retrieve information based on a defendant's or individual's name, the USAO number (United States Attorney's Office's internal administrative number), and the district court case number." Id.
On October 22, 2012, the FOIA Contact searched LIONS, the U.S. District Court, Northern District of Illinois, Case Management and Electronic Case Files (CM-ECF) database, an older database called PROMIS, and the USAO/ILN's microfiche file system using variations of plaintiff's name as search terms. Defs.' Mem., Decl. of Sharon Getty ("Getty Decl.") ¶ 6. She learned from these sources the caption and case number of plaintiff's criminal case and the lead Assistant United States Attorney ("AUSA") to whom the criminal case was assigned. Id. From the AUSA, the FOIA Contact "gather[ed] the requested records" and forwarded them to the EOUSA. Id. ¶ 7.
Upon receipt of Request 2014-0292, the FOIA Contact searched the LIONS database system, the federal district court's CM-ECF database, PROMIS and microfiche at the USAO/ILN. Id. ¶ 9. She determined that this request "was the same request that [the plaintiff] submitted in... Request No. 2012-3870," and that she had provided these records previously to the EOUSA. Id. ¶ 10. She searched the plaintiff's criminal case file and was unable to locate "the requested videos and video stills." Id. In addition, the FOIA Contact obtained from the lead FBI agent assigned to the matter "[five] potentially responsive pages that the FBI had in its possession relating to this request." Id. ¶ 14. Neither of the EOUSA's declarants was aware of any other location where responsive records likely would be located. Id. ¶ 15; Jolly Decl. ¶ 28.
The plaintiff's many FOIA requests to the FBI all sought information related to the bank robbery for which he was convicted. For example, the plaintiff requested
The plaintiff administratively appealed the FBI's determination to the DOJ's Office of Information Policy ("OIP"), see id. ¶ 15, and the OIP affirmed, id. ¶ 17, explaining that "[t]he FBI properly withheld certain information because it is protected from disclosure under the FOIA pursuant to [Exemptions 6, 7(C) and 7(E)]," id., Ex. L (Letter to plaintiff from Sean R. O'Neill, Chief, Administrative Appeals Staff, OIP, dated February 23, 2015) at 1.
The plaintiff's next request to the FBI pertained to a mask worn by the bank robber. Id. ¶ 18; see id., Ex. M (Freedom of Information/Privacy Act Request dated October 26, 2014). He was advised that the FBI "was unable to identify main file records responsive to [this] request." Id. ¶ 19; see id., Ex. N (Letter to plaintiff from David M. Hardy dated November 6, 2014). The plaintiff appealed, see id. ¶ 20, and the OIP affirmed the FBI's determination, id. ¶ 22; see id., Ex. Q (Letter to plaintiff from Christina D. Trolani, Attorney-Advisor, Administrative Appeals Staff, OIP, dated February 19, 2015) at 1.
The plaintiff sought records pertaining to latent fingerprints. Id. ¶ 23; see id., Ex. R (Freedom of Information/Privacy Act Request dated October 29, 2014). The FBI responded by releasing 31 pages of records, having withheld certain information under Exemptions 6, 7(C), and 7(E). Id. ¶ 25; see id., Ex. T (Letter to plaintiff from David M. Hardy dated December 19, 2014). Once again, the plaintiff submitted an administrative appeal to the OIP, id. ¶ 26, which affirmed the FBI's determination, id. ¶ 28; see id., Ex. W (Letter to plaintiff from Sean R. O'Neill, Attorney-Advisor, Administrative Appeals Staff, OIP, dated April 14, 2015).
The plaintiff's next submission to the FBI "reiterat[ed] his previous request for records related to a copy of a dust mask." Id. ¶ 29; see id., Ex. X (Letter to David M. Hardy from plaintiff dated November 2, 2014). Although the FBI could not search its indices for a specific piece of evidence, it suggested that "the information [the plaintiff] sought may have been under the purview of the [EOUSA]." Id. ¶ 30; see id. ¶ 48. Accordingly, the FBI forwarded this request to the EOUSA and notified the plaintiff of its action. Id. ¶ 30; see id., Ex. Y (Letter to plaintiff from David M. Hardy dated December 1, 2014) at 1. The plaintiff administratively appealed this action, id. ¶ 31, and the OIP closed the appeal as duplicative of his prior appeal of the FBI's response to FOIPA Request Number 1260039-001, id. ¶ 33; see id., Ex. BB (Letter to plaintiff from Matthew Hurd, Senior Attorney, OIP, dated March 9, 2015).
Again referring to videotapes, the plaintiff sought information about the chain of
In response to the plaintiff's FOIA request to the EOUSA, the EOUSA located records that had originated with the FBI, and referred these records to the FBI for its "review, disclosure determinations, and direct response to [the plaintiff]." Id. ¶ 37; see id., Ex. EE (Letter to the plaintiff from Susan B. Gerson, Assistant Director, Freedom of Information & Privacy Staff, EOUSA). The FBI reviewed 78 pages of records and released 37 of these pages, having withheld certain information under Exemptions 6 and 7(C). Id. ¶ 38; see id., Ex. FF (Letter to plaintiff from David M. Hardy dated November 12, 2013) at 1. The OIP affirmed the plaintiff's administrative appeal "contesting the 41 withheld pages." Id. ¶ 39.
A second referral from the EOUSA consisted of nine pages of records. Id. ¶ 42. All nine pages were released, though the FBI redacted certain information under Exemptions 6, 7(C) and 7(E). Id. ¶ 43; see id., Ex. JJ (Letter to plaintiff from David M. Hardy dated September 23, 2015). These pages were numbered Ford-1 through Ford-9. Id. ¶ 54.
On December 9, 2015, the FBI made a supplemental release of records "[i]n response to the instant action[.]" Id. ¶ 44. It "added Vaughn codes and Bates Stamps to [the] previous releases mentioned in [the] complaint" with respect to FOIPA Request Numbers 1217343-000, 1260039-000 and 1310417-000, and designated the pages Ford-10 through Ford-225. Id.; see id. n. 14. In sum, the FBI reviewed 216 pages of records, released 129 of them in full or in part, and withheld certain information under Exemptions 6, 7(C), 7(D), and 7(E). Id.
Within the request designated FOIPA Number 1260039-000 was the following request for amendment of FBI records:
Id., Ex. C (Freedom of Information/Privacy Act Request dated April 7, 2014). The FBI denied the request on the ground that the CRS, the system of records where the relevant case file was maintained, is exempt from the amendment provisions of the Privacy Act. Id. ¶ 50.
The plaintiff's first FOIA request to the EOUSA sought discovery materials and evidence produced at his criminal trial in the United States District Court for the Northern District of Illinois. See Defs.' Mem., Decl. of Vinay J. Jolly ("Jolly Decl."), Ex. A (Freedom of Information/Privacy Act Request dated August 31, 2012). The EOUSA acknowledged its receipt of the request, designated Request
After searching records maintained by the United States Attorney's Office for the Northern District of Illinois, the EOUSA determined that the responsive records originated with the FBI, and, accordingly, the "EOUSA referred [78 pages of] records to the FBI for its review and direct response to the [p]laintiff[.]" Id. ¶ 8; see id. n. 1; see also id., Ex. E (Letter to plaintiff from Susan B. Gerson dated March 29, 2013). The plaintiff appealed this determination to the OIP. Id. ¶ 10. His administrative appeal was unsuccessful, however, and the OIP deemed the referral "proper and in accordance with [DOJ] regulations." Id., Ex. J (Letter to plaintiff from Anne D. Work, Senior Counsel, Administrative Appeals Staff, OIP, dated March 25, 2014) at 1. In addition, the OIP found that the EOUSA "conducted an adequate, reasonable search for ... records" responsive to the plaintiff's FOIA request. Id., Ex. J at 1.
In October 2013, the plaintiff submitted a new FOIA request for six specific items:
Id., Ex. K (Freedom of Information/Privacy Act Request dated October 28, 2013) at 2 (emphasis in original). The EOUSA assigned this matter Request Number 2014-0292. See id., Ex. L (Letter to plaintiff from Susan B. Gerson dated January 15, 2014). A search of USAO/ILN records yielded no responsive records. Id. ¶ 15; see id., Ex. M (Letter to plaintiff from Susan B. Gerson dated March 21, 2014).
The plaintiff's administrative appeal to the OIP was unsuccessful. See id. ¶ 18. With respect to Item Numbers 1, 2 and 4, the OIP deemed the EOUSA's search adequate and reasonable in spite of its results. Id., Ex. P (Letter to plaintiff form Sean R. O'Neill, Chief, Administrative Appeals Staff, OIP, dated August 26, 2014) at 1. In addition, the OIP commented that Item Numbers 3, 5 and 6 had been addressed previously in the context of Request 2012-3780 and its referral to the FBI. Id., Ex. P at 1.
The plaintiff's third FOIA request to the EOUSA was limited to "grand jury transcripts
In October 2014, the plaintiff submitted a fourth FOIA request to the EOUSA, "this time for certain FBI evidentiary items from his criminal case," id. ¶ 25, such as latent fingerprints, see id., Ex. W (Freedom of Information/Privacy Act Request dated October 29, 2014). The "EOUSA notified [him] that a search for records in the USAO/ILN ... revealed that potentially responsive records originated with the [FBI]." Id. ¶ 27. Hence, the "EOUSA referred [five pages of] records to the FBI for its review and direct response to the [p]laintiff[.]" Id.; see id. n. 3; see also id., Ex. Z (Letter to plaintiff from Susan B. Gerson dated August 17, 2015).
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted "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). "In FOIA cases, summary judgment may be granted on the basis of agency affidavits 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." Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C.Cir.2013) (internal quotation marks omitted) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric., 455 F.3d 283, 287 (D.C.Cir.2006)). The agency invoking an exemption to the FOIA has the burden "to establish that the requested information is exempt." Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979); see U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989); Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1, 7 (D.C.Cir.2014); Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C.Cir.2003). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears `logical' or `plausible.'" Judicial Watch, Inc. v. U.S. Dep't of Def., 715 F.3d 937, 941 (D.C.Cir.2013) (quoting Am. Civil Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C.Cir.2011)); Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009) (quoting Wolf v. CIA, 473 F.3d 370, 374-75 (D.C.Cir.2007)).
The plaintiff's Privacy Act claim is addressed first, before turning to his objections to the agencies' refusal to release information under the claimed exemptions.
The plaintiff seeks amendment of a record, identified by the plaintiff as 91-ACG-128167, which is maintained in the FBI's CRS, which, as noted supra Part II. A, First Hardy Decl. ¶ 49, is "an extensive system of records ... compiled and maintained by the FBI in the course of fulfilling its integrated missions and functions as a law enforcement, counterterrorism, and intelligence agency[.]" Id. ¶ 45. Further, the
"The Privacy Act regulates the collection, maintenance, use, and dissemination of information about individuals by federal agencies." Wilson v. Libby, 535 F.3d 697, 707 (D.C.Cir.2008) (internal quotation marks and citations omitted). An individual may request access to and amendment of an agency's records or information pertaining to him in a system of records. See 5 U.S.C. § 552a(d). That individual may file a civil action against an agency which "makes a determination ... not to amend [the] record in accordance with his request." Id. § 552a(g)(1)(A).
An agency head may promulgate regulations to exempt a system of records from any part of the Privacy Act other than subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i), if the system of records is:
5 U.S.C. § 552a(j)(2). FBI regulations, for example, exempt the CRS (JUSTICE/FBI-002) from subsections (d) and (g) of the Privacy Act. See 28 C.F.R. §§ 16.46(f)(4), 16.96(a). Therefore, the declarant states, "any responsive CRS records about [the] plaintiff are exempt from access and amendment under applicable Privacy Act statutory and regulatory authority." First Hardy Decl. ¶ 50. The Court concurs. CRS records are exempt from the Privacy Act's amendment provisions, and the plaintiff's Privacy Act claim therefore will be dismissed. See Lee v. FBI, 172 F.Supp.3d 304, 307-08, 2016 WL 1225957, at *3 (D.D.C. Mar. 28, 2016).
In response to the plaintiff's multiple FOIA requests, the FBI and EOUSA have withheld records under FOIA Exemptions 3 and 7. Each of these exemptions is considered seriatim below.
The EOUSA relies on Exemption 3 and Federal Rule of Criminal Procedure 6(e) to withhold grand jury transcripts requested by the plaintiff. Exemption 3 protects information "specifically exempted from disclosure by statute ... if that statute —
5 U.S.C. § 552(b)(3)(A).
Rule 6(e), which Congress affirmatively enacted, is considered a statute for purposes of Exemption 3. See Fund for Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 867 (D.C.Cir. 1981) ("It is quite apparent that by any definition Fed. R. Crim. P. 6(e) is a statute."). This rule bars the disclosure of
The EOUSA explains that Exemption 3 and Rule 6(e) are invoked to withhold grand jury transcripts "because release of this information would reveal the identity of a grand jury witness, the scope of the grand jury, and the direction of the investigation by providing the source of evidence and evidence produced before the grand jury." Jolly Decl. ¶ 33. In other words, if the plaintiff were to have access to this information, he would learn "the scope of the grand jury's investigation" from "where the government sought... evidence to develop its case, how the government developed its case, and [on whom] the government relied ... to develop elements of crimes." Id. Because none of the information is "segregable without revealing ... protected information," the grand jury transcripts are withheld in their entirety. Id. ¶ 34.
The plaintiff nevertheless demands the release of "Grand Jury transcript concerning witness Thomas (and others) testimony." Pl. Ford's Reply/Aff./Mem. of Fact: Issues # 1-10 in Opp'n to Defs.' Mot. for Summ. J., ECF No. 25 ("Pl.'s Opp'n") at 8. According to the plaintiff, "[t]he transcript likely reveals perjury" because one witness "has shown a clear pattern of changing his testimony to fill the needs of P.D./FBI/U.S. Attorneys." Id. Specifically, the plaintiff claims, the "AUSA ... produced false testimony from [the witness] & used empty bank lobby photos to conceal that [the] witness was so distracted during most of [the] event[,] and in fact became so distracted... that he walked away from [the] bandit ... and stood 50 feet away while not facing [the] bandit." Id. at 9. Further, he claims that witnesses' "pre-trial & trial testimony is likely to ... differ from their grand jury testimony[.]" Id. at 10. The plaintiff claims to have "made a compelling showing that transcripts are needed to avoid injustice in the 7th [Circuit] & that plaintiff['s] interest[] in proving his factual innocence outweighs any privacy or law enforcement interest the government has in this case[.]" Id. at 14.
Regardless of whether grand jury testimony might support the plaintiff's claim of innocence, the EOUSA adequately demonstrates that release of the grand jury transcripts impermissibly would reveal the identity of a witness, evidence before the grand jury and the source of that evidence. Its decision to withhold grand jury information under Exemption 3 is proper. See, e.g., Thelen v. U.S. Dep't of Justice, 169 F.Supp.3d 128, 135-36, 2016 WL 1048772, at *3 (D.D.C. Mar. 14, 2016) (withholding name of a grand jury witness and other information from which the witness's name could be ascertained); Adionser v. Dep't of Justice, 811 F.Supp.2d 284, 296 (D.D.C. 2011) (withholding information that would reveal scope of grand jury and direction of investigation by providing targets' identities, source of evidence, and evidence actually produced before grand jury), aff'd in
The FBI has withheld documents responsive to the plaintiff's multiple requests pursuant to various subsections of FOIA Exemption 7. This exemption protects from disclosure information compiled for law enforcement purposes, but only to the extent that disclosure reasonably could be expected to result in an enumerated harm. 5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982). "To show that the disputed 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 violation of federal law." Blackwell v. FBI, 646 F.3d 37, 40 (D.C.Cir.2011) (internal quotation marks and citations omitted).
The FBI's declarant explains that the Bureau "is 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 [to] further the foreign intelligence objectives of the United States." First Hardy Decl. ¶ 58. Pursuant to this authority, the declarant states, the FBI conducted a "criminal investigation of [the p]laintiff for a bank robbery, in violation of 18 USC § 2113A," and the relevant investigative file was compiled during that investigation. Id. Thus, the FBI easily demonstrates, and the plaintiff does not dispute, that the responsive records were compiled for law enforcement purposes and fall within the scope of Exemption 7.
The FBI relies on Exemption 7(C) to withhold from records responsive to the plaintiff's requests the names of and identifying information about third parties appearing in the responsive records, including FBI Special Agents and support personnel, First Hardy Decl. ¶ 63; non-FBI federal government personnel, id. ¶ 65; local law enforcement personnel, id. ¶ 66; third parties who were interviewed by or provided information to local law enforcement personnel during the course of the investigation, id. ¶ 67; commercial and financial institution employees who cooperated with the FBI, id. ¶ 69; third parties of investigative interest to the FBI, id. ¶ 70; third parties with criminal records, id. ¶ 71; third parties who were merely mentioned in the investigative file, id. ¶ 72; and the victim of a crime, id. ¶ 73. "`[I]dentifying information' may include, but is not limited to, dates of birth, social security numbers, addresses, telephone numbers, and/or other personal information." Id. ¶ 63 n. 19.
Exemption 7(C) authorizes an agency to withhold law enforcement records if disclosure "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,
Of all the information withheld under Exemption 7(C), the plaintiff expresses an interest only in the identities of the FBI agent or agents who had control of original video recordings and who edited, produced or authenticated particular trial exhibits. See Pl.'s Opp'n at 4-5, 11-12 (regarding exhibits identified by plaintiff as "# 1-51 & 2-51"). The plaintiff suggests that the trial exhibits derived from the original video recordings were edited in such a way as to distort the duration of the robbery, see id. at 4, and to "exclude[] critical egress footage," id. at 5. He further contends that certain evidence, including still photographs of a rear door and the location of a latent print, was "not made available to [him] at trial," id. at 6, and that other evidence, including a crime scene photo of a latent print, was "not turned over ... until 8 days before trial," id. at 4. For these reasons, the plaintiff asserts that he did not receive a fair trial, see, e.g., id. at 4, 6, because the prosecution deliberately withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), "as a means to secure a conviction," Pl.'s Opp'n at 10. The Court surmises, then, that the plaintiff argues for the release of third party information on the ground that there is a significant public interest in revealing the misconduct of the prosecutor(s) and FBI agent(s) who played a role in effecting his criminal conviction. See, e.g., id. at 8, 11. The argument is not persuasive.
The plaintiff fails to recognize that the government's obligations in a FOIA case are not the same as its obligations in a criminal case. See, e.g., Mingo v. U.S. Dep't of Justice, No. 08-2197, 2009 WL 2618129, at *2 (D.D.C. Aug. 24, 2009) (rejecting argument that agency deliberately withheld exculpatory information in violation of the Fifth Amendment because the government's constitutional obligation under Brady to disclose exculpatory material to criminal defendant is not coextensive with the agency's statutory obligations under the FOIA). Nor can the plaintiff establish that the "indirect public purpose" of "ensuring fair criminal trials" can, "in the absence of compelling evidence of agency misconduct, ... outweigh the substantial privacy interests" of the third parties. Johnson v. U.S. Dep't of Justice, No. CIV. A. 85-714, 1991 WL 251940, at *1 (D.D.C. Nov. 13, 1991). At most, release of the information the plaintiff seeks might reveal "a single, garden-variety act of misconduct [which] would not serve the FOIA's purpose of showing what the [g]overnment is up to." Oguaju v. United States, 288 F.3d 448, 451 (D.C.Cir.2002), cert. granted, judgment vacated sub nom. Oguaju v. U.S. Marshals Serv., 541 U.S. 970, 124 S.Ct. 1903, 158 L.Ed.2d 464
The plaintiff does not seek the dates of birth, addresses, social security numbers or telephone numbers of any FBI Special Agent or local police department personnel, see Pl.'s Opp'n at 5, and he fails even to mention the other third parties whose identities the FBI protects. The Court therefore treats as conceded the FBI's arguments for withholding all the other third party information under Exemption 7(C). See, e.g., Brillhart v. FBI, 869 F.Supp.2d 12, 15 (D.D.C.2012) ("Plaintiff does not challenge, and thus concedes, defendant's properly documented reasons for redacting information from the 54 released pages under FOIA exemptions 3, 6, 7(C) and 7(E)."); Maydak v. U.S. Dep't of Justice, 254 F.Supp.2d 23, 41 (D.D.C.2003) (where plaintiff did not challenge FBI's justification for withholding information under Exemptions 7(C) and 7(D), he "concedes the issue"). Even if the plaintiff had not conceded these arguments, the Court finds that FBI adequately justified its determinations. See SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1206 (D.C.Cir.1991) (holding "categorically that, unless access to the names and addresses of private individuals appearing in files within the ambit of Exemption 7(C) is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity, such information is exempt from disclosure"); see also Blackwell, 646 F.3d at 41 ("FOIA ordinarily does not require disclosure of law enforcement documents (or portions thereof) that contain private information.").
The FBI relied on Exemption 7(D) to withhold "information provided to [it] by a local law enforcement agency." First Hardy Decl. ¶ 74. Exemption 7(D) protects from disclosure those records or information compiled for law enforcement purposes that
5 U.S.C. § 552(b)(7)(D). There is no general "presumption that a source is confidential within the meaning of Exemption 7(D) whenever [a] source provides information [to a law enforcement agency] in the course of a criminal investigation." U.S. Dep't of Justice v. Landano, 508 U.S. 165, 181, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993). Rather, a source's confidentiality must be determined on a case-by-case basis. Id. at 179-80, 113 S.Ct. 2014. "A source is confidential within the meaning of [E]xemption 7(D) if the source `provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.'" Williams v. FBI, 69 F.3d 1155, 1159 (D.C.Cir.1995) (per curiam) (quoting Landano, 508 U.S. at 170-74, 113 S.Ct. 2014). "An `implied' assurance may be inferred from evidence showing the circumstances surrounding the imparting of the information, including the nature of the criminal investigation and the confidential source's relationship to the target." Willis v. U.S. Dep't of Justice, 581 F.Supp.2d 57, 77 (D.D.C.2008) (citing Landano, 508 U.S. at 171-72, 113 S.Ct. 2014).
The FBI declarant explains that Exemption 7(D) was invoked to withhold "information
If the FBI were to disclose information obtained from local law enforcement agencies, "cooperation between the FBI and these agencies would be greatly diminished, causing significant detriment to effective law enforcement." Id. ¶ 75. Further, the declarant states, "[t]he degradation of perceived trust in the FBI ... would seriously impair the FBI's effectiveness in assisting with or participating in future investigations with local law enforcement agencies." Id. ¶ 74.
The law is well-established that a local law enforcement agency can be a source for purposes of Exemption 7(D), see Lesar v. U.S. Dep't of Justice, 636 F.2d 472, 491 (D.C.Cir.1980) (holding that "the word `source' in Exemption 7(D) includes not only individuals such as private citizens and paid informants but also entities such as the state and local law enforcement agencies here involved"), and the information it provides to the FBI may be withheld under Exemption 7(D), see Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1492 (D.C.Cir.1984) (finding that "confidential information supplied by foreign and local law enforcement agencies is clearly within the purview of Exemption 7(D)"). Based on the declarant's explanation of the cooperative arrangements the FBI maintains with local law enforcement agencies, and this local law enforcement agency's specific request that the information it provided not be disclosed, the FBI adequately demonstrates that its reliance on Exemption 7(D) is proper. See, e.g., Beard v. Dep't of Justice, 917 F.Supp. 61, 63 (D.D.C.1996) (where "the [Metropolitan Police Department] does not agree to [the FBI's request to] release the information, the exemption provided under 7(D) must be honored"); Sluby v. U.S. Dep't of Justice, No. CIV.A. 86-1503, 1987 WL 10509, at *5 (D.D.C. Apr. 30, 1987) (where "an understanding of confidentiality exists between federal and local law enforcement agencies based on a general course of dealing and that this understanding was present," FBI properly withheld information under Exemption 7(D)).
The FBI withheld certain internal communications information and bank video-surveillance footage under Exemption 7(E). This exemption protects law enforcement records, the release of which "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).
Under this exemption, the FBI withheld "its internal security phone number, internal email address and/or non-public intranet
The plaintiff fails to address these arguments, and the Court treats them as conceded. At any rate, the Court finds that the FBI's justification for withholding this information is adequate. See Am. Civil Liberties Union Found. of Massachusetts v. FBI, No. 14-CV-11759, 2016 WL 4411492, at *6 (D.Mass. Aug. 17, 2016) (approving the redaction of information "show[ing] what activities trigger a full investigation as opposed to a preliminary investigation or assessment, as well as what types of cases the FBI is focusing on"); Tracy v. U.S. Dep't of Justice, No. CV 15-655, 191 F.Supp.3d 83, 96, 2016 WL 3248185, at *9 (D.D.C. June 10, 2016) (withholding internal FBI website address on the ground that its "disclosure ... would increase the risk of cyberattacks"), appeal filed, No. 16-5187 (D.C.Cir. June 28, 2016).
The plaintiff focuses on the FBI's decision to withhold "in its entirety responsive video containing bank surveillance." First Hardy Decl. ¶ 79. The declarant explains the rationale for withholding this item as follows:
Id.
The FBI offers further support for its position with an explanation that "[b]ank surveillance footage often consists of views from each camera in the bank, and it is often analyzed during the course of any subsequent law enforcement investigation of a bank robbery[.]" Reply in Support of Def.'s Mot. for Summary Judgment, ECF No. 29, Second Decl. of David M. Hardy ("Second Hardy Decl.") ¶ 6. Its declarant states:
Id.
The plaintiff responds that the bank's cameras not only "are meant to be visible as an added deterant [sic] in this setting," but also are placed in such a way as to "cover all areas of [the] bank lobby." Pl.'s Opp'n at 3. He maintains a need for a copy of the complete video recording, still images derived therefrom, and other crime scene photos, arguing that he was deprived of a fair trial because these items had not been provided to him previously. See id. at 3-4. The plaintiff's arguments are simply not persuasive. Even if some cameras are "visible" as a deterrent, other cameras may be placed at angles or in areas unknown to the public and disclosure of this information could, as the FBI points out, "provide criminals the necessary information to circumvent the very purpose of a bank surveillance system, making banks more vulnerable to bank robberies and/or other criminal activity, and therefore circumvent the law." Second Hardy Decl. ¶ 6
In short, the Court concurs with the FBI. See Malloy v. U.S. Dep't of Justice, 457 F.Supp. 543, 545 (D.D.C.1978) (concluding "that release of information about bait money, bank security devices, investigative leads, and the bank layout, would result in the disclosure of investigative techniques and procedures not commonly known to the public"). The FBI's decision to withhold bank surveillance footage under Exemption 7(E) is proper.
"Even when FOIA exemptions apply, `[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.'" Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C.Cir.2007) (quoting 5 U.S.C. § 552(b)). It is the Court's obligation to "make specific findings of segregability regarding the documents to be withheld," id. (citations omitted), "even if the issue has not been specifically raised by the FOIA plaintiff," Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C.Cir.1999); see also PHE, Inc. v. Dep't of Justice, 983 F.2d 248, 252 (D.C.Cir.1993) ("[A] district court clearly errs when it approves the government's withholding of information under the FOIA without making an express finding on segregability.").
The FBI's declarant avers that "each responsive page was individually examined to identify non-exempt information that could be reasonably segregated from exempt information," and that "[a]ll segregable information has been released to plaintiff." First Hardy Decl. ¶ 81. Similarly, the EOUSA's declarant avers that "[a]ll of the withheld records fall within [Exemption 3] and are not segregable without revealing... protected information." Jolly Decl. ¶ 34. The plaintiff's opposition is silent on the matter of segregability. Based on the defendants' supporting declarations, the Court concludes that the FBI and the EOUSA adequately specified "which portions of the document[s] are disclosable and which are allegedly exempt." Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir.1973).
The defendants have demonstrated that the FBI and the EOUSA conducted
An Order consistent with this Memorandum Opinion is issued separately.
