Awan v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

KHALID AWAN,

Plaintiff,
Civil Action No. 10-1100 (BAH/JMF)
v.
Judge Beryl A. Howell
UNITED STATES
DEPARTMENT OF JUSTICE, et al.,

Defendants.

MEMORANDUM OPINION

The plaintiff Khalid Awan, who is proceeding pro se, brought this action to challenge the

responses of the Federal Bureau of Investigation (“FBI”) to his requests for documents under the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. On May 22, 2013, the Court adopted the

Magistrate Judge’s Report and Recommendation (“R&R”), ECF No. 48, granting in part and

deferring in part the defendants’ motion for summary judgment, ECF No. 19. See Mem. Op. &

Order, ECF No. 64. Based on the declarations supporting the defendants’ initial summary

judgment motion and the parties’ supplemental filings, for the reasons set forth below, the

defendants’ motion for summary judgment is granted in part and denied in part on the remaining

issues previously deferred, and the defendants are directed to release, in part, the previously

withheld affidavit supporting a material witness warrant application.

I. BACKGROUND

The factual and procedural history of this case is briefly summarized below to help

clarify the limited issues subject to resolution in this Memorandum Opinion.

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 A. Factual History

On December 10, 2008, the plaintiff requested from the FBI copies of the following

documents:

1. the arrest warrant and affidavits in support of his arrest as a material witness in
2001;
2. the search warrant and affidavit in support of the search warrant for storage
lockers number 1238 and 2303 located in New York;
3. a copy of the permissions and approvals obtained by the FBI for wiretaps from
2003-2004; and
4. the receipt or details of any cash seized by the FBI on October 25, 2001, including
copies of travelers checks and bank receipts.

Second Decl. of David M. Hardy (“Second Hardy Decl.”) ¶ 11, ECF No. 19-2. 1 The plaintiff’s

subsequent requests forming the basis of this action are variations of the foregoing request and

collectively seek the same types of records. See id. ¶ 23 (describing the basis of this lawsuit as

the plaintiff’s FOIA requests dated April 21, 2009, April 23, 2009, and May 11, 2009, seeking

substantially the same records); Compl. ¶¶ 10–12, ECF No. 1 (noting that same request had also

been made in letters, dated March 16, 2009, June 16, 2009 and August 3, 2009).

In response to the plaintiff’s FOIA requests at issue in this suit, the FBI has released

documents to the plaintiff both before and after this lawsuit was filed: on April 30, 2009, Second

Hardy Decl. ¶¶ 10; 12; Exs. I; J; on January 14, 2011, id. ¶ 24; Ex. Y; and on May 9, 2012, Third

1
Although the first item in the plaintiff’s FOIA request seeks the warrant and affidavit filed in the Southern District
of New York in support of his arrest as a material witness, he was not arrested on this warrant, which was vacated.
See Pl.’s Resp. Defs.’ Suppl. Decl., Ex. B, ECF No. 65. Instead, the plaintiff was arrested for and pleaded guilty to
credit card fraud, in violation of 18 U.S.C. § 1029, for which he was sentenced, in October, 2004, in the Eastern
District of New York, to a term of imprisonment of 60 months. See Awan v. United States, 2012 U.S. Dist. LEXIS
92350, at *1–2 (E.D.N.Y. June 28, 2012) (summarizing background of plaintiff’s convictions); Awan v. United
States, 2009 U.S. Dist. LEXIS 92353, at *1–3 (E.D.N.Y. Sept. 30, 2009) (same). While serving this sentence, in
2006, the plaintiff was indicted and convicted after trial of conspiracy to provide and providing material support to a
terrorist organization and money laundering in promotion of terrorism, in violation of 18 U.S.C. §§ 2339A and
956(a)(2)(A), for which he was sentenced, in October 2007, also in the Eastern District of New York, to 168
months’ imprisonment. See United States v. Awan, 607 F.3d 306, 309–310 (2d Cir. 2010) (summarizing
background of plaintiff’s convictions); Awan v. Lapin, 2010 U.S. Dist. LEXIS 24974, at *1–2 (E.D.N.Y. Mar. 17,
2010) (same); Awan v. United States, 2009 U.S. Dist. LEXIS 92353, at *1–3 (E.D.N.Y. Sept. 30, 2009) (same).
During his incarceration, the plaintiff has been “a frequent FOIA requestor who has submitted numerous requests
which are similar in nature.” Second Hardy Decl. at 2 n. 4.

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Decl. of David M. Hardy (“Third Hardy Decl.”) ¶ 7, ECF No. 58-1. In total, the FBI located

seventy responsive pages, of which thirty-six pages were released (four in full and thierty-four

pages in part), eleven pages were withheld in full, and twenty-one pages were withheld as

duplicates. Second Hardy Decl. ¶ 4. In addition, on May 9, 2012, the FBI released, in part, a

five-page document, dated “8/18/2004,” related to consensually taped recordings of the plaintiff.

Third Hardy Decl. ¶ 7; Ex. A. See Pl.’s Resp. Defs.’ Supp. Decl. at 1, ECF No. 65

(acknowledging that “the FBI has released a lot of previously requested documents to the

Plaintiff”).

B. Procedural History

The plaintiff filed this lawsuit on June 29, 2010, challenging the adequacy of the FBI

search since the agency declined to search its “I-drives,” Compl. ¶¶ 16; 18; 21, and failing to

disclose requested records related to items 1, 2, and 3 of his FOIA request, id. ¶ 29. 2 In the

course of this litigation, the FBI has identified the bases for the withholding of information in the

various releases made to the plaintiff as under FOIA Exemptions 3, 5, 6, 7(C), 7(D) and 7(E) and

subsection (j)(2) of the Privacy Act, 5 U.S.C. § 552a. Second Hardy Decl. ¶ 5.

2
The FBI has released the financial records requested in item 4 of the plaintiff’s FOIA request so that part of his
request is not at issue in this litigation. See Compl. ¶ 14 (noting that plaintiff “received . . . pages related to financial
records”); Mag. J. Report & Recommendation regarding Defs.’ Mot. Summ. J. (“R&R”) at 2–3, ECF No. 48 (noting
that FBI has provided plaintiff with documents related to item 4 of his request). The plaintiff has nonetheless
persisted in requesting “copies of travellers’ [sic] checks seized by the FBI on October 25, 2001,” and of “receipt of
cash seized,” asserting that he has not received these documents. Pl.’s Resp. Defs.’ Suppl. Decl. at 3; Pl.’s Resp.
Defs.’ Reply Pl.’s Resp. Defs.’ Suppl. Decl. at 5, ECF No. 69. The defendants have supplied the plaintiff with
duplicate copies of the responsive records, Defs.’ Reply Pl.’s Resp. Defs.’ Suppl. Decl., at 6 n.3; Ex. 2, ECF No. 67,
and no more is required. To the extent that the defendants did not uncover in the FBI’s search and therefore did not
release the precise document, which the plaintiff requested, wanted, or was expecting, does not mean the search was
inadequate. See Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (“‘[I]t is
long settled that the failure of an agency to turn up one specific document in its search does not alone render a
search inadequate.’” (quoting Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)) (citations
omitted); Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 67–68 n.13 (D.C. Cir. 1990) (finding “insufficient to raise a
material question of fact with respect to the adequacy of the agency’s search” that “agency did not find responsive
documents that appellant claims must exist”).

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 After the filing of the defendants’ motion for summary judgment, 3 the plaintiff filed two

motions: (1) a motion to compel the defendants to answer discovery requests, Pl.’s Mot. Compel,

ECF No. 26, in response to which the defendants filed a motion for a protective order, Defs.’

Mot. Protective Order, ECF No. 29; and (2) a motion for “an ORDER directing the Defendants

to create a list of documents, describing each document located by a general description and date

of creation, and file location, in response to his FOIA request,” Pl.’s Resp. Defs.’ Reply Suppl.

Mot. Summ. J. at 2, ECF No. 27. 4 As to the first motion, the Court denied the plaintiff’s motion

to compel the defendants to respond to his discovery requests and granted the defendants’

request for a protective order. Awan v. U.S. Dep’t of Justice, 2011 U.S. Dist. LEXIS 76457, at

*5 (D.D.C. July 13, 2011). The Court also denied the plaintiff’s second motion seeking to

compel the production of a Vaughn index, but noted that the defendants had withheld “an 11-

page span based on FOIA Exemptions 3, 6, 7(C) and (D)” without describing the pages in a

declaration or otherwise. Awan v. U.S. Dep’t of Justice, 2011 U.S. Dist. LEXIS 76455, at *5–6

(D.D.C. July 13, 2011). Consequently, the Court ordered the defendants to submit for in camera

inspection an additional declaration explaining the withholding of Bates-stamped pages Awan-49

through Awan-59, the pages themselves, or both. 5 Id. In compliance with this order, the FBI

submitted in camera to the Court a declaration of David M. Hardy and the requested pages

Awan-49 through Awan-59. See Nots. of In Camera Submission, ECF Nos. 38; 71. These

pages are “the application dated October 23, 2001, for the material witness warrant,” which is

one of the documents sought in the plaintiff’s FOIA request. Mag. J. Report & Recommendation

3
This case was reassigned, on January 20, 2011, to the current presiding Judge shortly before the filing of the
defendants’ dispositive motion.
4
The Court construed the plaintiff’s request, which was set out in his opposition to the defendants’ motion for
summary judgment, as a motion to compel the production of a traditional Vaughn index.
5
The plaintiff also moved for appointment of counsel, Pl.’s Mot. Appt. Counsel, ECF No. 37, which was denied,
Mem. Op. & Order (Oct. 14, 2011), ECF No. 41.

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regarding Defs.’ Mot. Summ. J. (“R&R”) at 5, ECF No. 48.

1. The R&R

Following referral, the Magistrate Judge assigned to this case issued a report and

recommendation on February 24, 2012, ECF No. 48. The R&R summarized the plaintiff’s

contention as bearing “solely on the FBI’s not finding the 2001 affidavit and warrant for his 2001

arrest, the warrant and supporting affidavits for the search of the two storage lockers, and the

‘wire-tapping affidavit/warrant for plaintiff’s 2003 and 2004 case.’” R&R at 4 (quoting Compl. ¶

10). The R&R concluded, based on “[f]amiliarity with the docket and facts of plaintiff’s

criminal case,” that “each [requested] document . . . can be accounted for in one way or another,

so plaintiff’s challenge to the FBI’s sufficiency of its search and his complaint that it should have

searched the ‘I-drive’ have been rendered moot.” Id. Consequently, the R&R recommended that

the defendants’ motion for summary judgment on the adequacy of the search be granted. Id. at

13.

With respect to the portion of the FOIA request for wiretap affidavits and warrants, the

R&R concluded that “there were never any ‘wiretaps’ because the recorded conversations that

were admitted into evidence in the plaintiff’s criminal case were recorded with the consent of the

informant to whom plaintiff was talking.” Id. at 4; see id. at 7–9 (discussing why “The Wiretap

Application Does Not Exist”). This fact was fully disclosed in the plaintiff’s prior criminal case,

prompting the observation in the R&R that the “plaintiff has sent the FBI on a wild goose chase

and wasted this Court’s time by having the FBI search for what he knows or should know does

not exist.” Id. at 9.

Notwithstanding that the plaintiff’s request was for “wiretapping affidavit,” Compl. ¶ 10,

the FBI released to the plaintiff redacted documents relating to the consensual taped recordings,

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as to which the plaintiff challenged the bases for withholdings. 6 The R&R recommended

upholding the FBI’s contested application of Exemption 5 to information redacted from two

released pages, AWAN-25 and AWAN 63, as protected by the attorney-client privilege. Id. at

11–12. In addition, the R&R noted that the defendants had withdrawn their Exemption 2 claim,

“released the only page that had been withheld solely on the basis of [that] exemption,” id. at 10–

11, and that the plaintiff had not challenged—thus conceding—the defendants’ application of

Exemption 6 to certain redacted material. Id. at 12.

In rejecting the plaintiff’s challenge to claimed Exemptions 7(C) and 7(E), which exempt

from disclosure information that “could reasonably be expected to constitute an unwarranted

invasion of personal privacy,” or “disclose techniques . . . used in law enforcement investigations

or prosecutions . . . or risk circumvention of the law,” respectively, see 5 U.S.C. §§ 552(b)(7)(C);

(E), the R&R reiterated that the documents produced to the plaintiff “were not in fact the

documents requested, as, with regard to the ‘wiretaps’ they simply do not exist.” Id. at 13.

Consequently, the plaintiff’s “challenge to these exemptions must fail as they do not in any way

address the actual documents produced, or their contents.” Id.

The R&R further addressed the plaintiff’s counter to the defendants’ invocation of

Exemption 7(D), which exempts from disclosure information that “could reasonably be expected

to disclose the identity of a confidential source [and] information furnished by a confidential

source.” 5 U.S.C. § 552(b)(7)(D). According to the plaintiff, “all informants and confidential

sources testified at plaintiff’s criminal case and therefore have placed their identities in the public

domain.” R&R at 13. The R&R noted that a published opinion issued in connection with the

6
Indeed, the R&R determined that “all of the documents relating to the consensually taped recordings” were not
responsive to the plaintiff’s request for the non-existent “wiretapping applications and supporting affidavits.” R&R
at 9–10. Nevertheless, in an attempt “to bring this matter to an end,” the R&R proceeded to address the plaintiff’s
challenge to the withholdings. Id. at 10.

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plaintiff’s second conviction “identified by name the person who recorded his conversations with

plaintiff,” but it was unclear whether that was the same “person whose name has been excerpted

from the documents.” Id. (referring to United States v. Awan, No. 06-CR-0154, 2007 WL

749739, at *3 (E.D.N.Y. Mar. 7, 2007), aff’d, 384 Fed. App’x 9 (2d Cir. 2010)). The R&R

therefore recommended that the defendants “ascertain whether the expurgated name” was that of

the person identified in the judicial opinion. Id. at 13.

Finally, with respect to the remaining requested documents—namely, the applications for

a material witness warrant and storage locker search warrants—the R&R noted that they “are

still under seal.” Id. at 5; 7. The R&R recommended that the defendants “must be first provided

with the opportunity to establish that the sealing order prohibits the disclosure plaintiff seeks,”

id. at 5 (citing Morgan v. U.S. Dep’t of Justice, 923 F.2d 195, 199 n.5 (D.C. Cir. 1991)), but if

this could not be established, the defendants would still be “entitled to claim any exemptions

with reference to the documents that are subject to the sealing orders.” Id. Hence, the R&R

recommended that any discussion of Exemptions applicable to the sealed records be “postponed

until the defendants first speak to the consequences of plaintiff’s FOIA request pertaining to the

sealed documents.” Id.

In sum, the R&R recommended granting the defendants’ summary judgment motion

“insofar as plaintiff complains of the inadequacy of the search for the documents and insofar as

he seeks ‘wiretap’ information.” Id. at 13. The R&R otherwise recommended holding the

motion in abeyance pending the defendants’ responses to the following questions: (1) whether a

sealing order issued by the Eastern District of New York prohibits disclosure of the material

witness warrant application and the search warrant applications pertaining to two storage lockers,

and (2) whether a redacted name is that of “the informant who recorded his conversations with

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plaintiff and who is identified in Judge Sifton’s opinion.” R&R at 13–14.

2. Resolution of the Plaintiff’s Objections to the R&R

The plaintiff objected to the R&R’s finding regarding the adequacy of the search,

contending that no consideration was given to “plaintiff’s request for printouts of the indices of

the records system (I/S-drive),” Pl.’s Objs. to R&R Pursuant to 72(a) (“Pl.’s Objs.”) at 2, ECF

No. 50, and that the defendants had “failed to adequately search the FBI’s I and S drive system,”

Pl.’s Reply Defs.’ Opp’n Pl.’s Objs. (“Pl.’s Objs. Reply”) at 1, ECF No. 60. The Court overruled

the plaintiff’s objections, first, because they concerned information that was beyond the scope of

the underlying FOIA request and, second, because “the plaintiff ha[d] not objected to the

Magistrate Judge’s description of the requested documents” and the Magistrate Judge’s finding

that the search question was moot since each requested document “can be accounted for in one

way or another.” Mem. Op. & Order at 2, ECF No. 64. The Court adopted the R&R, thereby

granting partial summary judgment to the defendants on the claims based on the adequacy of the

defendants’ search and the defendants’ response to the requested wiretap information. See id.,

generally.

Meanwhile, the defendants have filed the Third Hardy Declaration, addressing the issues

raised in the R&R about the sealed documents and redacted name.

II. LEGAL STANDARD

The FOIA confers jurisdiction on the district court to compel an agency to release

“improperly withheld” records. Morgan, 923 F.2d at 196 (internal quotation marks omitted). An

improper withholding does not occur, and the FOIA does not apply, when documents are

withheld pursuant to a court order specifically enjoining their release. This is so because the

agency “simply [has] no discretion . . . to exercise” and, thus, “has made no effort to avoid

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disclosure.” GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 386 (1980). As

the D.C. Circuit explained in Morgan, “respect for the judicial process requires the agency to

honor the injunction . . . .” 923 F.2d at 197 (citing GTE Sylvania, Inc., 445 U.S. at 386–87).

Therefore, “the proper test for determining whether an agency improperly withholds records

under seal is whether the seal, like an injunction, prohibits the agency from disclosing the

records.” Id. (emphasis in original).

The burden of demonstrating that the responsive records were placed under seal with the

intent to prohibit their disclosure rests with the agency. Id. at 198. Merely stating that

responsive records are subject to a court sealing order is insufficient to demonstrate that “the

court issued the seal with the intent to prohibit the agency from disclosing the records,” as

required under the Morgan standard. See Morgan, 923 F.2d at 198 (“If the [agency] obtains a

clarifying order stating that the seal prohibits disclosure, the [agency] is obviously entitled to

summary judgment.”); see also Jennings v. FBI, 2004 U.S. Dist. LEXIS 31951, at *19–21

(D.D.C. May 6, 2004) (denying summary judgment where agency “has not provided any details

regarding the sealing order”); Senate of Commw. of P.R. v. U.S. Dep’t of Justice, 1993 U.S. Dist.

LEXIS 12162, at *17–19 (D.D.C. Aug. 24, 1993) (same); Concepcion v. FBI, 699 F. Supp. 2d

106, 111–114 (D.D.C. 2010) (same). The agency may satisfy its burden under Morgan by

referring to (1) the sealing order itself; (2) extrinsic evidence, such as papers filed with the

sealing court that provide the rationale for the sealing; (3) sealing orders of the same court in

similar cases that explain the purpose of the imposition of the seals; or (4) the court’s general

rules of procedures governing the imposition of seals. Morgan, 923 F.2d at 198; Concepcion,

699 F. Supp. 2d at 111. Upon finding that the sealing order does prohibit the agency from

releasing the records, the agency is entitled to summary judgment on its withholding of the

9
records. Morgan, 923 F.2d at 198.

III. DISCUSSION

Pending before the Court is the portion of the defendants’ motion for summary judgment

held in abeyance regarding the propriety of the withholding of (1) two sealed documents,

namely, the FBI’s sealed affidavit filed in the Eastern District of New York in support of a

search warrant for two storage lockers and the FBI’s sealed affidavit filed in the Southern

District of New York in support of a material witness warrant; and (2) a redacted name of a

confidential informant. See R&R at 6–7; Third Hardy Decl. ¶ 8. These remaining issues are

addressed seriatim below.

A. Withholding of Sealed Documents

1. Sealed Storage Locker Search Warrant Affidavit

The defendants have supplied an order from Magistrate Judge William D. Wall of the

Eastern District of New York clarifying that the sealing order with regard to the search warrant

application for the two storage lockers “was intended to prohibit the disclosure of the sealed

documents, including the FBI affidavit, under the [FOIA].” Defs.’ Reply Pl.’s Resp. Defs’

Suppl. Decl. Ex. 1, ECF No. 67-1. “If the DOJ obtains a clarifying order stating that the seal

prohibits disclosure, the DOJ is obviously entitled to summary judgment.” Morgan, 923 F.2d at

198. Hence, the Court will grant summary judgment to the defendants on their withholding of

the storage locker search warrant affidavit since no improper withholding has occurred. 7

7
Presumably, the plaintiff may seek to unseal the documents by filing a motion in the Eastern District of New York
and, if successful, submit a new FOIA request to the agency. See, e.g., In re Application of the United States for
Material Witness Warrant, 214 F. Supp. 2d 356, 357–58 (S.D.N.Y. 2002) (“[A] subordinate issue here is whether
anything regarding these proceedings [placed under seal as ancillary to a grand jury investigation] should remain
sealed”). Nevertheless, the FBI has asserted that it is unable to locate the affidavit underlying the search warrant for
the two storage lockers. Third Hardy Decl. ¶ 8.

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 2. Sealed Material Witness Warrant Affidavit

The plaintiff requested “the arrest warrant and affidavits in support of his arrest as a

material witness in 2001.” 8 R&R at 2. The defendants contend that the affidavit in support of

the material witness warrant is properly withheld because it remains under seal and,

alternatively, under FOIA Exemption 3 based on Rule 6(e) of the Federal Rules of Criminal

Procedure. See Defs.’ Reply Pl.’s Resp. Defs.’ Suppl. Decl. (“Defs.’ Reply”) at 3; 5 n.2, ECF

No. 67.

a. Sufficiency of Sealing Order Under Morgan Standard

First, the defendants’ declarant states that the application for a material witness warrant

“was submitted to and sealed by the . . . Southern District of New York,” Third Hardy Decl. ¶ 8,

but the defendants have not produced an order clarifying the sealing of this document. Hence,

they must demonstrate by other means that “the court issued the seal with the intent to prohibit

the DOJ from disclosing [the information] as long as the seal remains in effect.” Morgan, 923

F.2d at 198. In doing so, as noted, the defendants may refer to various sources including:

(1) the sealing order itself; (2) extrinsic evidence, such as transcripts and
papers filed with the sealing court, casting light on the factors that
motivated the court to impose the seal; (3) sealing orders of the same court
in similar cases that explain the purpose for the imposition of the seals; or
(4) the court's general rules or procedures governing the imposition of seals.

Id. (footnote omitted).

The defendants reviewed the sealing court’s local rules and contacted the U.S. Attorney’s

Office for the Southern District of New York. Third Hardy Decl. ¶ 8. The local rules provided

8
In a recent filing, the plaintiff placed in the record the material witness arrest warrant and an order vacating the
warrant. Pl.’s Resp. Defs.’ Suppl. Decl. Ex. B, ECF No. 65. The issuing judge in the Southern District of New
York directed that the “order [vacating the warrant] [] be filed under seal and disclosed only to the parties and the
United States Marshal pursuant to Fed. R. Crim. 6(e),” id., which may explain how the plaintiff is in possession of
this warrant and order. In any event, the plaintiff’s request for the arrest warrant appears to be moot. Thus, the
Court will focus only on the supporting affidavit.

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no guidance, and the U.S. Attorney’s Office “located the 2001 file containing the affidavit” but

located “no record . . . explaining the reason for the issuance of the sealing order.” Id. The

defendants’ declarant states “that it was standard operating procedure after the September 2001

terrorist attacks to seal these type of records,” and that he has “been informed that the document

remains under seal.” Id. See also R&R at 1–2 (recounting the plaintiff’s support of a Pakistani

terrorist group that led to his convictions) (citing United States v. Awan, No. CR-06-0154, 2007

WL 749739, at *1 (E.D.N.Y. Mar. 7, 2007), aff’d, 384 Fed. App’x 9 (2d Cir. 2010)). In addition,

the defendants have cited a ruling in a case from the same circuit, United States v. Abdel Sattar,

No. 02 CR 395, 2002 WL 1836755 (S.D.N.Y. Aug. 12, 2002), which is similar only to the extent

that, like the plaintiff, the defendants were charged with providing material support to a terrorist

organization. In that case, however, the issue before the court in the Southern District of New

York was whether to hold an evidentiary hearing regarding how a sealed search warrant ended

up in the public record. See id. at *7–8. In denying a co-defendant’s motion for the hearing, the

court noted “[t]he government requested that the original search warrants and affidavits remain

under seal, and the Court granted that request . . . . [I]n fact, the record indicates that the

government has consistently maintained an interest in preserving all of these materials under

seal.” Id. at *8.

Contrary to the defendants’ suggestion, see Defs.’ Reply at 4–5, the foregoing statements

regarding the “government[’s]” interest shed no light on the court’s intent or purpose behind the

sealing order at issue here, and the defendants’ declaration is similarly unhelpful. Hence, the

Court finds that the defendants have not established the Southern District’s sealing order as a

proper basis for withholding the over decade old material witness warrant affidavit under the

FOIA. See Concepcion, 699 F. Supp. 2d at 112 (finding defendant’s arguments unpersuasive

12
where “[t]he Sealing Order itself presents no rationale for its issuance . . . and the defendant

presents no transcript or other documentation to cast light on the factors that motivated the court

to impose the seal.”) (citing Morgan, 923 F.2d at 198)).

b. Application of FOIA Exemption 3

The defendants have argued in the alternative that the material witness warrant affidavit

is exempt from disclosure under FOIA Exemption 3. See Defs.’ Reply at 5 n.2 (referring to

argument set forth at Mem. Supp. Defs.’ Mot. Summ. J. at 11–12, ECF No. 19). Exemption 3

applies to matters “specifically exempted from disclosure by statute . . . if that statute” either (1)

“requires that the matters be withheld from the public in such a manner as to leave no discretion

on the issue,” or (2) “establishes particular criteria for withholding or refers to particular types of

matters to be withheld.” 5 U.S.C. § 552(b)(3). “Federal Rule of Criminal Procedure 6(e) . . .

prohibits certain persons from ‘disclos[ing] a matter occurring before [a] grand jury,’” . . . and

that rule counts as a statute for purposes of Exemption 3, as it has been positively enacted by

Congress.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1113 (D.C. Cir. 2007) (quoting

FED. R. CRIM. P. 6(e)(2)(B)) (other citations omitted).

Rule 6(e) does not preclude disclosure of all grand jury information but rather bars

disclosure of information that “would tend to reveal some secret aspect of the grand jury’s

investigation.” Id. (citation and internal quotation marks omitted). This includes such matters as

“the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the

investigation, the deliberations or questions of jurors, and the like.” Senate of the Commw. of

P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987) (quoting SEC v. Dresser Indus.,

Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc)); see, e.g., Lopez v. U.S. Dep’t of Justice,

393 F.3d 1345, 1350–51 (D.C. Cir. 2005) (determining that “[a]ll grand jury subpoenas (be they

13
ad testificandum or duces tecum)” are protected from disclosure while the dates on which a

prosecutor conducted a preliminary interview of a potential grand jury witness would not

necessarily reveal a secret aspect of the grand jury and, thus, might not be protected); see also

Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 948–49 (D.C. Cir. 2003) (Tatel,

J., dissenting) (noting that Rule 6(e) forbids disclosure of names of persons detained on material

witness warrants “who have actually testified before grand juries” and those who are likely to

testify but not necessarily those “who have neither testified before grand juries nor are scheduled

to do so,” or those “who were released without ever having testified”).

The defendants’ declarant states generally that disclosure of any information withheld

under Exemption 3 would reveal a secret aspect of the grand jury that investigated the September

11, 2011, terrorist attacks and, thus, would violate Rule 6(e). Second Hardy Decl. ¶ 47. He also

states that “[i]n the investigative files responsive to plaintiff’s request, only that information

which explicitly discloses matters occurring before a Federal Grand Jury had been withheld

pursuant to Exemption (b)(3).” Id. (emphasis supplied). After careful review of the affidavit

supporting the material witness warrant in camera, the Court finds not only that it is not a grand

jury document but that it contains no information tending to reveal a secret aspect of the grand

jury’s investigation. The affidavit explains why the FBI’s affiant “believe[d]” that the plaintiff’s

testimony “will be material to the grand jury’s investigation” of the September 11 attacks, but it

neither identifies a grand jury witness nor reveals any grand jury testimony.

An earlier observation about the treatment of similar records appears equally applicable

here: “the Government’s reliance on grand jury secrecy rules to justify withholding the identities

of material witnesses is fundamentally wrong as a matter of law” and “deeply troubling.” Ctr.

for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 215 F. Supp. 2d 94, 106 (D.D.C. 2002), aff’d in

14
relevant part, 331 F.3d 918 (D.C. Cir. 2003). It was noted in that case that “[a] person

apprehended as a material witness is not accused of any crime but, instead, has been arrested

because it is believed that his . . . ‘testimony is material in a criminal proceeding.’” Id. (quoting

18 U.S.C. § 3144) (emphasis in original). Rule (6)(e) “does not bar disclosure of the identities of

persons detained as material witnesses,” and this Court agrees that where the identities of

persons held on material witness warrants and grand jury witnesses might overlap, “the

Government can reveal the names of material witnesses [if not exempt under other exemptions]

without revealing any information about their status as grand jury witnesses.” Id. See also

Morrow v. District of Columbia, 417 F.2d 728, 741–742 (D.C. Cir. 1969) (“The requirement that

arrest books be open to the public is to prevent any ‘secret arrests,’ a concept odious to a

democratic society.”); In re Material Witness Warrant, 214 F. Supp. 2d at 363–364 (S.D.N.Y.

2002) (“While grand jury secrecy is mandated by law, see FED. R. CRIM. P. 6(e)(5)&(6), the

determination to jail a person pending his appearance before a grand jury is presumptively

public, for no free society can long tolerate secret arrests.”).

In addition, the first four pages of the withheld document (AWAN 49-52) consist of

background information about the September 11, 2001 events that, even if grand jury material, is

so “sufficiently widely known that it has lost its character as Rule 6(e) material.” In re Grand

Jury Subpoena, Judith Miller, 438 F.3d 1138, 1140 (D.C. Cir. 2006) (quoting In re North, 16

F.3d 1234, 1245 (D.C. Cir. 1994)); see id. (“Our case law . . . reflects the common-sense

proposition that secrecy is no longer ‘necessary’ when the contents of grand jury matters have

become public.”); see also Ctr. for Nat’l Sec. Studies, 215 F. Supp. 2d at 96 (describing

September 11, 2001, as “truly a day of infamy in our national history” and recounting the

government’s “massive effort to investigate, identify and apprehend those who were responsible

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and to protect the American public against further attacks of this nature.”). Furthermore, some of

the remaining information is, and was at the time of the plaintiff’s FOIA request in 2008, a

matter of public record. See United States v. Awan, 2007 WL 749739, at *1–2 (recounting

background of the plaintiff’s convictions). Accordingly, the Court denies summary judgment to

the defendants on their invocation of Exemption 3 to justify withholding the material witness

warrant affidavit.

In addition to invoking Exemption 3, however, the defendants have invoked Exemptions

6, 7(C), and 7(D) to protect from disclosure the names and other identifying information of third-

party individuals appearing in the material witness warrant affidavit, including the names of an

FBI Special Agent, the names and identifying information of third parties mentioned, and the

names and identifying information of individuals who provided information under an express

assurance of confidentiality. Second Hardy Decl. ¶¶ 55–59; 62–63; 71–72; id. Ex. Z at 18, ECF

No. 19-5. For reasons discussed more fully below, in Part III.B., the Court agrees that such

information is exempt. Indeed, the plaintiff has made clear that he “is not seeking identification

of the informants in his case [and] [s]uch request was never expressly requested.” Pl.’s Mem.

Supp. Suppl. Mot. Pl.’s Opp’n Defs.’ Mot. Summ. J. (“Pl.’s Suppl. Mem.”) at 15, ECF No. 40.

Therefore, the defendants are ordered to release only such information contained in the

material witness warrant affidavit that was withheld solely under Exemption 3.

B. Redacted Names are Properly Withheld

The plaintiff posited in opposing summary judgment that the “informants and

confidential sources in the instant matter testified at [his] trial” and, “as such, have placed their

identities in the public domain as well as having expressly waived any protections afforded by a

confidential agreement.” Pl.’s Suppl. Mem. at 16. The R&R appears to have accepted this

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conclusion and focused on “the name of the person identified as the person whose conversations

with plaintiff were recorded and who is identified in [Judge Sifton’s] opinion.” R&R at 13.

Without addressing any other redacted name, the R&R ordered “the defendants to ascertain

whether the expurgated name is” the same person mentioned by name in the opinion “and if he

is, why his identity is not known and in the public domain and why his name should be

expurgated from the copies of the documents given plaintiff.” Id.

As a general rule under the FOIA, “an individual does not waive privacy rights merely by

testifying at a trial.” Clay v. U.S. Dep’t of Justice, 680 F. Supp. 2d 239, 248 (D.D.C. 2010)

(collecting cases). Under the public domain doctrine, otherwise exempt information “lose[s] [its]

protective cloak once disclosed and preserved in a permanent public record.” Cottone v. Reno,

193 F.3d 550, 554 (D.C. Cir. 1999). This doctrine, however, applies only to information that has

been “officially acknowledg[ed],” i.e., made public through an official and documented

disclosure. Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007). To prevail on the “public domain”

exception to the FOIA, a plaintiff must “point[] to ‘specific information in the public domain that

appears to duplicate that being withheld.’” Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 933

(D.C. Cir. 2012) (quoting Wolf, 473 F.3d at 378); accord Fitzgibbon v. CIA, 911 F.2d 755, 765

(D.C. Cir. 1990); Afshar v. U.S. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983); see also

Cottone, 193 F.3d at 555 (affirming withholding of audio tapes produced during pretrial

proceedings but not played in open court or otherwise placed in the public record).

The R&R did not find that the plaintiff had met his initial burden of showing prior

disclosure, nor could this finding be derived from the plaintiff’s conclusory assertions.

Furthermore, the plaintiff did not claim, let alone show, that the FBI had “officially

acknowledg[ed]” the existence of the informants and confidential sources he claims testified at

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his trial or that those witnesses were the same individuals whose names were redacted in any

document released to the plaintiff. See Wolf, 473 F.3d at 378. The Court therefore finds that the

R&R erroneously shifted the plaintiff’s burden to the defendants and hereby sets aside this part

of the R&R.

Moreover, the Court finds that the defendants have properly justified redacting under

FOIA Exemptions 6 and 7(C) the name of a third-party individual who provided information to

the FBI during the criminal investigation, but will address only the latter Exemption since the

responsive records were compiled for law enforcement purposes. 9 See Second Hardy Decl. ¶¶

52; 60–61. It is established that absent an overriding public interest, which the plaintiff has not

shown here, third-party identifying information is “categorically exempt” from disclosure under

Exemption 7(C). Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C.

Cir. 1995); see Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (citing

cases that have “consistently supported nondisclosure of names or other information identifying

[third-party] individuals appearing in law enforcement records, including investigators, suspects,

witnesses, and informants”).

In addition, the Court finds that the defendants have properly justified redacting the name

of a confidential informant under Exemption 7(D), which shields from disclosure information

that “could reasonably be expected to disclose the identity of a confidential source . . . and, in the

case of a record or information compiled by criminal law enforcement authority [during] a

criminal investigation . . . information furnished by a confidential source.” 5 U.S.C. § 552(b)

(7)(D). The defendants redacted the name based on an express grant of confidentiality, see

9
See Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011) (finding “no need to consider Exemption 6
separately [where] all information that would fall within the scope of Exemption 6 would also be immune from
disclosure under Exemption 7(C)”).

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Second Hardy Decl. ¶¶ 66; 71–75, but, given the nature of the crimes at issue, they could have

reasonably justified the redaction based also on an implied grant of confidentiality. See Mays v.

DEA, 234 F.3d 1324, 1329–31 (D.C. Cir. 2000) (discussing “‘generic circumstances in which an

implied assurance of confidentiality fairly can be inferred’”).

“Once the[] requirements are met, the application of Exemption 7(D) is automatic.”

Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992). Thus, “[e]ven [if] the

source testifies in open court. . . he does not thereby waive the [government’s] right to invoke

Exemption 7(D)” to withhold information that was not disclosed in public. Id. The government

“is obliged to disclose only the ‘exact information’ to which the source actually testified.” Id.

(citation omitted). As already determined, the plaintiff has not met his burden of showing what,

if any, information was the subject of testimony as his criminal trial. Hence, the Court finds that

the defendants are entitled to summary judgment on their redaction of the name of a person, even

if that person was named in a judicial opinion, under Exemptions 7(C) and 7(D), as well as their

redaction of third-party information from the material witness warrant affidavit.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that the defendants are entitled to

judgment as a matter of law on their withholding of certain information under FOIA Exemptions

7(C) and 7(D) but not on their complete withholding of the sealed affidavit supporting the

material witness warrant under Exemption 3. Accordingly, the Defendants’ Motion for

Summary Judgment, ECF No. 19, is GRANTED in part and DENIED in part. The defendants

shall release, by February 28, 2014, to the plaintiff portions of the material witness warrant

application that were previously withheld solely under Exemption 3 and promptly thereafter

request entry of judgment pursuant to Fed. R. Civ. P. 58(d).

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 An appropriate order accompanies this Memorandum Opinion.

Date: January 17, 2014 Digitally signed by Beryl A. Howell
DN: cn=Beryl A. Howell, o=District Court for
the District of Columbia, ou=District Court
Judge,
email=howell_chambers@dcd.uscourts.gov,
c=US
__________________________
Date: 2014.01.17 15:18:31 -05'00'

BERYL A. HOWELL
United States District Judge

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