Boehm v. Federal Bureau of Investigation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
JOSEF F. BOEHM, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-2173 (ABJ)
)
FEDERAL BUREAU OF )
INVESTIGATION, et al., )
)
Defendants. )
____________________________________)

MEMORANDUM OPINION

Plaintiff Josef Franz Boehm brings this action under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552 (2006), and the Privacy Act, 5 U.S.C. § 552(a) (2006). Plaintiff’s

complaint challenges defendants’ responses to written requests that he made to the Federal

Bureau of Investigations (“FBI”), the Executive Office for United States Attorneys (“EOUSA”),

and the Criminal Division (“CRM”) of the United States Department of Justice (“DOJ”). The

requests sought copies of any records in agency files from the years 2000 to 2009 that mention or

concern Joseph Franz Boehm. All three agencies have now responded to plaintiff’s requests by

conducting searches, disclosing some responsive records, and providing their reasons for

withholding others. Defendants have filed a motion for summary judgment. Defs.’ Mot. for

Summ. J. (“Defs.’ Mot.”) [Dkt. # 36]. Plaintiff opposes the motion, challenging the adequacy of

the agencies’ searches and their withholdings. Pl.’s Response to Defs.’ Mot. for Summ. J. (“Pl.’s

Opp.”) [Dkt. # 42]. Because the agencies conducted adequate searches, but they have not

provided adequate explanations for some of their withholdings, the Court will grant in part and

deny in part defendants’ motion.
 BACKGROUND

Plaintiff is currently incarcerated at the Seagoville Federal Correctional Institution in

Seagoville, Texas. Compl. [Dkt. # 1] ¶ 1. In 2004, he pled guilty to one count of conspiracy to

commit the crime of sex trafficking of children, in violation of 18 U.S.C. §§ 371 and 1591(a)(1),

and one count of conspiracy to distribute controlled substances to persons under age twenty-one,

in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), and 859(a). Court Minutes, United

States v. Boehm, Case No. 3:04-cr-00003-JWS (D. Alaska Nov. 22, 2004) [Dkt. # 692]; see also

Hardy Decl. [Dkt. # 36-5] ¶ 5. In May 2005, he was sentenced in the United States District

Court for the District of Alaska to approximately eleven years in prison. Judgment, United

States v. Boehm, Case No. 3:04-cr-00003-JWS (D. Alaska May 16, 2005) [Dkt. # 779-1].

On June 22, 2009, plaintiff submitted written requests to the FBI, the EOUSA, and the

CRM under the Privacy Act and FOIA. Ex. A to Luczynski Decl. [Dkt. # 36-4] (EOUSA); Ex. B

to Hardy Decl. (Criminal Division of DOJ); Ex. A to Argall Decl. [Dkt. # 36-2] (FBI). All of the

requests stated:

I am requesting access to all records in agency files, including but not
limited to all documents and records concerning Josef Franz Boehm . . .
for the years between 2000 and 2009 inclusive. . . . This is an all-inclusive
request and includes any document, wherever located, in which the name
of Josef Franz Boehm is made mention or listed including investigations
of persons or business entities other than Josef Franz Boehm.

Id. The requests included plaintiff’s date of birth, social security number, register number, place

of birth, and the criminal case number of the offense for which he is currently incarcerated. Id.

I. Request to the EOUSA

The EOUSA acknowledged receipt of plaintiff’s request by letter dated August 18, 2009.

Ex. B to Luczynski Decl. On August 27, 2010, it responded to the request. Ex. C to Luczynski

Decl. The response stated that the records plaintiff sought were located in a system of records

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that is exempt from the access provisions of the Privacy Act. Id. However, pursuant to FOIA,

the EOUSA released 92 pages of responsive material in full and 128 pages in part. Id. In

addition it withheld 1,545 pages of responsive material under FOIA Exemptions 3, 5, 7(C), 7(D),

and 7(F), as well as grand jury material. Id. The letter also stated that the EOUSA had located

records that originated with the FBI and that those the records were being referred to the FBI for

review and for direct response to plaintiff. Id. The letter also notified plaintiff of the procedure

for appealing the EOUSA’s decision. Id.

According to the declaration of David Luczynski, Attorney Advisor for the EOUSA, the

EOUSA referred 2,414 pages of material to the FBI. Luczynski Decl. ¶ 6. In addition, on

October 27, 2010, the EOUSA referred to the FBI case audiotapes and DVDs that had been

compiled prior to plaintiff’s prosecution. Id. ¶ 7. The EOUSA also received a four-page referral

letter sent by the CRM on March 14, 2011. Id. ¶ 8.

II. Request to the CRM

On July 21, 2009, the CRM sent plaintiff a letter acknowledging its receipt of his request

and notifying him that additional information was required. Ex. 2 to Cunningham Decl. [Dkt.

# 36-3]; Cunningham Decl. ¶ 7. Plaintiff provided the additional information to the agency, Ex.

3 to Cunningham Decl., and the agency acknowledged receipt on August 31, 2009, Ex. 4 to

Cunningham Decl. The CRM’s first substantive response to plaintiff’s request stated that all of

the responsive documents uncovered by its search were exempt from disclosure under FOIA

Exemption (7)(A) because the records related to an open and ongoing law enforcement

proceeding and release could reasonably be expected to interfere with the proceeding. Ex. 5 to

Cunningham Decl. However, the agency later determined that the records should no longer be

withheld under Exemption 7(A), but that the FBI – not the CRM – was the proper processing

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agency for the records because they had originated with the FBI. Cunningham Decl. ¶ 14. The

CRM then forwarded the records to the FBI for processing and direct reply to plaintiff. Id.

The CRM also received 202 pages of material from the FBI, which the CRM later

determined to have originated from the EOUSA and the U.S. Marshals Service. Id. ¶¶ 15, 16.

The CRM forwarded the documents to the originating agencies. Id. The CRM did not identify

any responsive materials that had originated with it. See id. ¶ 17.

III. Request to the FBI

The FBI acknowledged receipt of plaintiff’s request by letter dated July 8, 2009. Ex. B to

Argall Decl. On September 14, 2009, it responded to the request by a second letter. Ex. C to

Argall Decl. That response stated that the material requested was located in an investigative file

which is exempt from disclosure pursuant to FOIA Exemption 7(A). Id. It further stated that

plaintiff could file an appeal by writing to the DOJ Office of Information Policy, and that any

appeal must be received within sixty days from the date of the response letter. Id. The Office of

Information Policy has no record of receiving a notice of appeal from plaintiff, Argall Decl. ¶ 10,

and plaintiff does not claim that he filed one, see Pl.’s Opp. at 7–8 (arguing that failure to

exhaust does not preclude the Court from hearing plaintiff’s claims).

IV. Documents referred to the FBI from other agencies

By letter dated November 12, 2010, the FBI informed plaintiff that it had received

approximately 4,791 pages of material from other agencies that had originated with the FBI, and

that the material might be responsive to his request. Ex. C to Hardy Decl. [Dkt. # 36-6]. The

FBI determined that all of this material was exempt from disclosure under the Privacy Act.

Hardy Decl. ¶ 26. However, the FBI eventually released 1,359 pages of responsive material

under FOIA, of which 431 pages were released in full and 928 pages were released in part. Id.

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¶ 27; see also Exs. E, G, J, M, O to Hardy Decl. [Dkt. # 36-6]. The FBI also released sixteen

responsive CDs containing audio and two responsive DVDs containing video to plaintiff under

FOIA. Hardy Decl. ¶ 27. The FBI withheld 2,763 pages in full, of which 628 pages were

withheld because they were duplicates of other released pages and 2,135 pages were withheld

under FOIA exemptions and/or a court order sealing them. Id.

V. Procedural Background

Plaintiff, acting pro se, filed the complaint in this action on November 16, 2009. The

complaint alleges that “defendants have failed, refused, and neglected to comply with Plaintiff’s

reasonable requests for records, documents, and discovery.” Compl. ¶ 10. It seeks an order

requiring defendants to produce all documents responsive to his request, including without

limitation, all Brady and Jenks Act material relevant to his criminal case, all communications

about him by the United States Attorney’s Office, all FBI 302 reports concerning him, all in-

house agency reports, documents, and records naming him, and all material exculpatory or

impeaching documents concerning the criminal investigation of him. Compl. at 3. After

defendants notified the Court and plaintiff of their withholdings, the Court ordered plaintiff to

notify the Court whether he intended to challenge some or all of the FOIA exemptions and, if so,

to indicate to the Court whether he wanted to designate a representative sample or have

defendants propose the sample and allow him to supplement it. Minute Order (June 29, 2011).

In response, plaintiff filed a motion for Vaughn index, [Dkt. # 19], and a notice of intent

to challenge the asserted FOIA exemptions, [Dkt. # 20] (“Notice of Intent”). Plaintiff requested

that he designate the representative sample. Notice of Intent. Defendants opposed plaintiff’s

motion and requested that the Court order defendants to designate a representative sample within

thirty days, and order plaintiff to designate supplemental material within thirty days after

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defendants’ designation. [Dkt. # 21]. By Minute Order of September 30, 2011, the Court

ordered defendants to prepare a representative sample of documents that they were withholding

under FOIA exemptions, transmit the sample to plaintiff accompanied by a letter explaining the

representative nature of the sample, and file a notice of designation with the Court by October

31, 2011. The Court further ordered plaintiff to designate any supplemental material and file a

notice of designation with the Court by December 1, 2011.

Defendants filed their notice of designation on October 31, 2011. [Dkt. # 22]. The

EOUSA has filed a declaration by David Luczynski, an Attorney Advisor with the EOUSA who

is responsible for matters related to FOIA, Luczynski Decl. ¶ 1, that states that the EOUSA

reviewed all of the responsive documents and prepared a 200-page sample out of unredacted and

partially redacted pages. Luczynski Decl. ¶ 9 & n.1. According to the declaration, the sample

was chosen to be “both a fair representative of all the FOIA Exemptions taken, and to also reflect

the wide variety of documents contained within the release.” Id. ¶ 9. The sample was sent to

plaintiff on October 28, 2011. 1 Id. ¶ 9. In addition, the EOUSA provided a Vaughn index of all

of the documents in the representative sample as well as a supplemental Vaughn index of a 154-

page representative sample of the 1,545 pages of documents that were withheld in full. Id. ¶¶ 9,

10. According to Luczynski, “[t]hese records are selected as a fair and accurate representation”

of the withheld documents. Id. ¶ 10.

The FBI has submitted a declaration by David M. Hardy, the Section Chief of the

Record/Information Dissemination Section, Records Management Division of the FBI, Hardy

Decl. ¶ 1, which states that the FBI has designated a representative sample consisting of 422

pages, one CD, one DVD, and one audiotape. Id. ¶ 24; Ex. P to Hardy Decl. [Dkt. # 36-7].

1 The same sample was filed on the public docket in this action on April 30, 2013. Notice
of Filing of Representative Sample [Dkt. # 45].
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According to the declaration, this sample is representative of documents that were both withheld

in part and withheld in full. Hardy Decl. ¶ 24. In addition, the FBI provided a Vaughn index of

all of the documents in the representative sample along with a key to the codes used in the

Vaughn index. Hardy Decl. at 8–13 (“FBI Vaughn Index”); Summary of Justification

Categories, Hardy Decl. at 17–18. The Hardy declaration states that the indexed documents are

representative of all the FOIA exemptions cited and reflective of the variety of documents

contained within the responsive records. Hardy Decl. ¶ 24.

Plaintiff did not designate any supplemental material in response to defendants’

designations. On January 18, 2012, the Court entered a scheduling order for dispositive motions.

Sched. Order [Dkt. # 26]. Defendants filed a motion for summary judgment on November 23,

2012. Defs.’ Mot. Counsel subsequently entered an appearance on behalf of plaintiff, Notice of

Appearance [Dkt. # 39]; see Minute Order (Jan. 25, 2013), and plaintiff filed an opposition to

defendants’ motion through counsel, Pl.’s Opp. Defendants filed their reply on April 11, 2013.

Defs.’ Reply to Pl.’s Response to Mot. for Summ. J. (“Defs.’ Reply”) [Dkt. # 44].

STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The party seeking summary judgment bears the “initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat

summary judgment, the non-moving party must “designate specific facts showing there is a

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genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual

dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the

non-moving party; a fact is only “material” if it is capable of affecting the outcome of the

litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In

assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the

light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris, 550

U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654,

655 (1962) (per curiam).

ANALYSIS

I. The Privacy Act

The Privacy Act provides:

Each agency that maintains a system of records shall . . . upon request by
any individual to gain access to his record or to any information pertaining
to him which is contained in the system, permit him . . . to review the
record and have a copy made of all or any portion thereof in a form
comprehensible to him . . . .

5 U.S.C. § 552a(d)(1). Thus, any material that is subject to the disclosure provision of the

Privacy Act must be a “record” that is, in turn, contained in a “system of records.” Fisher v.

Nat’l Inst. of Health, 934 F. Supp. 464, 468 (D.D.C. 1996).

When a plaintiff challenges an agency’s withholding of documents under the Privacy

Act, the court determines de novo whether the withholding was proper, and the burden is on the

agency to sustain its action. 5 U.S.C. § 552a(g)(2)(A); Doe v. United States, 821 F.2d 694, 697–

98 (D.C. Cir. 1987) (finding that in this context, de novo means “a fresh, independent

determination of ‘the matter’ at stake,” and the court need not give “deference . . . to the

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agency’s conclusion”) (en banc); see also Skinner v. DOJ, 584 F.3d 1093, 1096 (D.C. Cir. 2009).

“[T]he [Privacy] Act ‘safeguards the public from unwarranted collection, maintenance, use, and

dissemination of personal information contained in agency records . . . by allowing an individual

to participate in ensuring that his records are accurate and properly used.” McCready v.

Nicholson, 465 F.3d 1, 7–8 (D.C. Cir. 2006), quoting Bartel v. Fed. Aviation Admin., 725 F.2d

1403, 1407 (D.C. Cir. 1984).

Defendants assert that all of the records at issue here fall under an exemption to

disclosure, codified at 5 U.S.C. § 552a(j)(2) (“Exemption j(2)”). Exemption j(2) applies if: (1)

the records are stored in a system of records that has been designated by the agency to be exempt

from the Privacy Act’s disclosure requirements, and (2) the system of records is “maintained by

an agency or component thereof which performs as its principal function any activity pertaining

to the enforcement of criminal law[s]” and consists of “information compiled for the purpose of

a criminal investigation.” 5 U.S.C. § 552a(j)(2); see also Defs.’ Mem. in Support of Mot. for

Summ. J. (“Defs.’ Mem.”) [Dkt. # 36-1] at 9–10.

Plaintiff has not opposed defendants’ assertion of Exemption (j)(2) over any of the

material at issue in this case, so the Court may properly treat defendants’ assertion as conceded.

See McMillan v. Wash. Metro. Area Transit Auth., 898 F. Supp. 2d 64, 69 (D.D.C. 2012), citing

Howard v. Locke, 729 F. Supp. 2d 85, 87 (D.D.C. 2010) (“It is well understood in this Circuit

that when a plaintiff files an opposition to a motion . . . addressing only certain arguments raised

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by the defendant, a court may treat those arguments that the plaintiff failed to address as

conceded.”). 2

II. FOIA

“[A]ccess to records under [FOIA and the Privacy Act] is available without regard to

exemptions under the other.” Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C.

Cir. 1987). Accordingly, the Court will next turn to plaintiff’s FOIA claims.

The purpose of FOIA is to require the release of government records upon request and to

“ensure an informed citizenry, vital to the functioning of a democratic society, needed to check

against corruption and to hold the governors accountable to the governed.” Nat’l Labor

Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 220, 242 (1978). At the same time,

Congress recognized “that legitimate governmental and private interests could be harmed by

release of certain types of information and provided nine specific exemptions under which

disclosure could be refused.” FBI v. Abramson, 456 U.S. 615, 621 (1982); see also Ctr. for Nat’l

Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (“FOIA represents a balance struck by

Congress between the public’s right to know and the government’s legitimate interest in keeping

2 In addition, the Court is satisfied that defendants have met their burden to show that
Exemption (j)(2) applies to any responsive records covered by the Privacy Act. With respect to
the FBI records, the Hardy declaration states that the records relate to investigations and/or
matters within the FBI’s investigatory authority, and were compiled as a result of the coordinated
legitimate law enforcement efforts between local law enforcement and the FBI to investigate
child sex trafficking and drug violations. Hardy Decl. ¶ 26. And with respect to the EOUSA
records, the Luczynski declaration states that plaintiff’s entire request pertains to criminal
investigations, and therefore the responsive records were necessarily compiled for law
enforcement purposes. Luczynski Decl. ¶ 15. Criminal case files maintained by U.S. Attorney’s
Offices are part of the DOJ Privacy Act System of Records and are designated by the agency as
exempt from the Privacy Act’s disclosure requirements under 28 C.F.R. § 16.81(a)(4). See
Adionser v. DOJ, 811 F. Supp. 2d 284, 301 (D.D.C. 2011) (finding records from criminal case
files to be exempt from disclosure under Exemption (j)(2), affirmed by No. 11-5093, 2012 WL
5897172, at *1 (D.C. Cir. Nov. 5, 2012); Plunkett v. DOJ, -- F. Supp. 2d --, Civ. A. No. 11-
0341(RWR), 2013 WL 628546, at *11 (D.D.C. Feb. 20, 2013) (same).

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certain information confidential.”). The Supreme Court has instructed that “FOIA exemptions

are to be narrowly construed.” Abramson, 456 U.S. at 630.

To prevail at the summary judgment phase in a typical FOIA action, an agency must

satisfy two elements. First, the agency must demonstrate that it has made “a good faith effort to

conduct a search for the requested records, using methods which can be reasonably expected to

produce the information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.

1990). “[A]t the summary judgment phase, an agency must set forth sufficient information in its

affidavits for a court to determine if the search was adequate.” Nation Magazine, Wash. Bureau

v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995), citing Oglesby, 920 F.2d at 68. Such

agency affidavits attesting to a reasonable search “are afforded a presumption of good faith[,]”

Defenders of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004), and “can be

rebutted only ‘with evidence that the agency’s search was not made in good faith.’” Id., quoting

Trans Union LLC v. FTC, 141 F. Supp. 2d 62, 69 (D.D.C. 2001). Second, an agency must show

that “materials that are withheld . . . fall within a FOIA statutory exemption.” Leadership

Conference on Rights v. Gonzales, 404 F. Supp. 2d 246, 252 (D.D.C. 2005). After asserting and

explaining its exemptions, an agency must release “[a]ny reasonably segregable portion of a

record” and provide it to the requesting party, “after deletion of the portions which are exempt.”

5 U.S.C. § 552(b).

Once a FOIA request has been processed, a plaintiff is required to exhaust all

administrative remedies before bringing an action to compel disclosure of documents. See 28

C.F.R. § 16.9(c) (2012); Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). Failure to exhaust

such remedies bars the lawsuit. See Banks v. DOJ, 813 F. Supp. 2d 132, 138–39 (D.D.C. 2011)

(granting agency’s motion for summary judgment in FOIA action where the plaintiff failed to

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file an administrative appeal before filing the lawsuit); Schwaner v. Dep’t of Army, 696 F. Supp.

2d 77, 81 (D.D.C. 2010) (same). A plaintiff is deemed to have exhausted his administrative

remedies with respect to his FOIA request when an agency “fails to comply with the applicable

time limit provisions” of FOIA. 5 U.S.C. § 552(a)(6)(C)(i). The agency has twenty days to

make an initial determination, and following an administrative appeal of a FOIA decision,

twenty days to make a determination on the appeal. 5 U.S.C. § 552(a)(6)(A)(i)–(ii).

The district court reviews the agency's action de novo, and “the burden is on the agency

to sustain its action.” 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v. Casey, 656 F.2d

724, 738 (D.C. Cir. 1981). Once the case comes to court, “FOIA cases are typically and

appropriately decided on motions for summary judgment.” Moore v. Bush, 601 F. Supp. 2d 6, 12

(D.D.C. 2009). In any motion for summary judgment, the Court “must view the evidence in the

light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and

eschew making credibility determinations or weighing the evidence.” Montgomery v. Chao, 546

F.3d 703, 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). However, where a plaintiff has not provided evidence that an agency acted in bad faith,

“a court may award summary judgment solely on the basis of information provided by the

agency in declarations[.]” Moore, 601 F. Supp. 2d at 12.

1. Defendants are entitled to summary judgment as to the documents that originated
with the FBI and that were located at the FBI at the time the request was received
because plaintiff failed to exhaust his administrative remedies.

Defendants first argue that summary judgment is warranted for the subset of documents

that originated with the FBI and that were located at the FBI at the time the request was received

by the agency. Defs.’ Mem. at 5. These documents were processed by the FBI and, in a letter

dated September 14, 2009, plaintiff was informed that the FBI was withholding them under

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FOIA exemption 7(A) and that they were exempt from the Privacy Act’s disclosure

requirement. 3 Ex. C to Argall Decl. In addition, the letter informed plaintiff that he could file an

appeal by writing to the Director of the Office of Information Policy for DOJ within sixty days.

Id. Defendants assert that the Office of Information Policy never received an appeal from

plaintiff, Argall Decl. ¶ 10, and therefore that plaintiff’s challenge in this Court to the FBI’s

withholding of these records is barred for failure to exhaust administrative remedies.

Plaintiff does not claim that he filed an administrative appeal of the FBI’s decision.

Rather, he argues that failure to exhaust does not preclude judicial review of his challenge. Pl.’s

Opp. at 7–8. Plaintiff is correct that “the exhaustion requirement is not jurisdictional because the

FOIA does not unequivocally make it so.” Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir.

2003). “[S]till, as a jurisprudential doctrine, failure to exhaust precludes judicial review if the

purposes of exhaustion and the particular administrative scheme support such a bar.” Wilbur v.

CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (internal quotation marks omitted), quoting Hidalgo,

344 F.3d at 1258–59. And “the FOIA’s administrative scheme favors treating failure to exhaust

as a bar to judicial review.” Hidalgo, 344 F.3d at 1259. Moreover, permitting plaintiff to obtain

judicial review without exhausting his administrative remedies in this case would undermine the

purpose for the exhaustion requirement: “preventing premature interference with agency

processes, affording the parties and the courts the benefit of the agency’s experience and

expertise, or compiling a record which is adequate for judicial review.” Id. (alterations and

internal quotation marks omitted), quoting Ryan v. Bentsen, 12 F.3d 245, 247 (D.C. Cir. 1993).

Since plaintiff did not object to the FBI’s decision before the Office of Information Policy, the

3 FOIA exemption 7(A) applies to records or information compiled for law enforcement
purposes when their production could reasonably be expected to interfere with enforcement
proceedings. 5 U.S.C. § 552(b)(7)(A).
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agency has not had a chance to reconsider its initial decision in light of his objections, and this

Court does not have before it the record that such a review would have produced.

Plaintiff argues that this case is distinct because the FBI has waived the affirmative

defense of failure to exhaust by not raising it in a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6) and not asserting it in the answer to plaintiff’s complaint. Pl.’s Opp. at 8.

This is plainly wrong; defendants asserted the failure to exhaust defense with particularity as the

“third defense” in their answer to plaintiff’s complaint. Answer [Dkt. # 4] at 2 & n.2.

Accordingly, that defense has not been waived under Federal Rule of Civil Procedure 12(h). See

Fed. R. Civ. P. 12(h)(2) (stating that failure to state a legal defense to a claim may be raised in

any pleading allowed or ordered under Rule 7(a), which includes an answer to a complaint).

Plaintiff also argues that the FBI should be estopped from raising the exhaustion defense

because it continued to provide documents to plaintiff after he filed suit. Pl.’s Opp. at 8. This

argument is misleading. While the FBI did continue to provide documents to plaintiff even after

it asserted the exhaustion defense in this Court, they were documents that had been referred to

the FBI from other agencies because they originated from the FBI but were housed in a different

agency at the time of the request. See Hardy Decl. ¶¶ 6–23. Plaintiff offers no evidence that the

FBI ever revisited its initial decision regarding the documents that originated from the FBI and

were located at the FBI at the time the agency received the request. Those are the only records

with which the FBI’s September 14, 2009 decision was concerned. Therefore, the Court will not

consider whether such conduct would warrant estoppel.

Consistent with the precedent from this circuit, the Court finds that plaintiff is barred for

failure to exhaust administrative remedies from challenging the FBI’s decision on the subset of

documents that originated from the FBI and were located at the FBI at the time of plaintiff’s

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request. See also Love v. FBI, 660 F. Supp. 2d 56, 59–60 (D.D.C. 2009) (finding that the

plaintiff’s failure to exhaust his administrative remedies barred his claim); Callaway v. U.S.

Dep’t of Treasury, Civ. A. No. 04-1506(RWR), 2006 WL 6905083, at *4–5 (D.D.C. Apr. 26,

2006) (finding that the plaintiff’s challenge to some of the agency’s withholdings was barred for

failure to exhaust administrative remedies because the plaintiff did not appeal the agency’s

decision to the Office of Information Policy).

2. The defendant agencies performed adequate searches.

Plaintiff next asserts that defendants did not perform adequate searches for records

responsive to his request. To prevail in a FOIA case, the agency must demonstrate that it has

made “a good faith effort to conduct a search for the requested records, using methods which can

be reasonably expected to produce the information requested.” Ogelsby v. U.S. Dep’t of Army,

920 F.2d 57, 68 (D.C. Cir 1990). “[A]t the summary judgment phase, an agency must set forth

sufficient information in its affidavits for a court to determine if the search was adequate.”

Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995), citing

Ogelsby, 920 F.2d at 68. Such agency affidavits attesting to a reasonable search “are afforded a

presumption of good faith,” Defenders of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 8

(D.D.C. 2004), and “can be rebutted only ‘with evidence that the agency’s search was not made

in good faith.’” Id., quoting Trans Union LLC v. Fed. Trade Comm’n, 141 F. Supp. 2d 62, 69

(D.D.C. 2001).

To show that the CRM and the EOUSA performed adequate searches for information

responsive to plaintiff’s requests, defendants have submitted declarations by John Cunningham

III – a Trial Attorney in the CRM currently assigned to the FOIA and Privacy Act Unit,

Cunningham Decl. ¶ 1; and David Luczynski.

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 The Cunningham declaration states that the CRM searched its central index of records,

“which is the most comprehensive system of records maintained by the Division and contains

information about people referred to in potential/actual cases and other matters of concern to the

Criminal Division.” Cunningham Decl. ¶ 10. It used plaintiff’s name as a search term, as well

as the names of the co-defendants in his criminal case. Id.; see also Ex. 3 to Cunningham Decl.

In addition, since plaintiff had indicated in his submission of materials to the CRM that the

sections of the CRM that he reasonably believed may contain responsive records were the Child

Exploitation and Obscenity Section, the Narcotics and Dangerous Drugs Section, and the FOIA

and Privacy Act Unit of the Office of Enforcement Operations, the CRM made specific requests

to those units. Cunningham Decl. ¶ 10; see also Ex. 3 to Cunningham Decl. Responsive

documents were found only in the Child Exploitation and Obscenity Section. Cunningham Decl.

¶¶ 10, 12. Those documents were originally withheld under FOIA Exemption 7(A), but that

exemption was later determined to be inapplicable. Id. ¶¶ 13–14. However, the CRM

determined that the documents had originated from the FBI, so they were referred to that agency

for further processing. Id. ¶ 14. In addition, the CRM received materials from other agencies for

processing, but it determined that none of those documents had originated with the CRM and it

referred the material to the agencies where the materials had originated for further processing.

Id. ¶¶ 15–16. The declarant states that in his experience, it is not unusual for the CRM to locate

no original records in response to Privacy Act requests from federal inmates because it is not the

agency responsible for prosecuting or investigating most federal criminal cases. Id. ¶ 17.

Consistent with that experience, the declarant notes that plaintiff in this case was prosecuted by

the United States Attorney’s Office in Anchorage, Alaska, and not by the CRM. Id.

16
 The Luczynski declaration states that, upon receiving plaintiff’s request, the EOUSA

forwarded it to the FOIA contact for the District of Alaska because each United States

Attorney’s Office maintains the case files for criminal matters prosecuted by that office.

Luczynski Decl. ¶ 12. The FOIA contact for the District of Alaska searched for records from the

case files in plaintiff’s criminal case, and sent emails to the Assistant United States Attorneys in

the Criminal Division to ascertain whether they had any responsive records. Id. To search for

files, the FOIA contact used the “LIONS” system, which is a computer system used by United

States Attorneys’ Offices to access databases which can be used to retrieve files pertaining to

cases and investigations based on a defendant’s name, the internal administrative number for the

case, and the district court case number. Id. The FOIA contact used plaintiff’s name as the

search term. Id. According to the declarant, “[a]ll responsive documents to Plaintiff’s FOIA

request would have been located in the [United States Attorney’s Office] for the District of

Alaska . . . . There are no other record systems or locations within EOUSA or DOJ in which

other files pertaining to Plaintiff’s name were maintained.” Id. 4

These affidavits establish that the agencies searched the databases that were likely to turn

up documents responsive to plaintiff’s requests using search terms that correspond to the scope

of the requests. In addition, because the EOUSA had employees who were familiar with

plaintiff’s criminal case, it also requested additional documents from those individuals. The

Court therefore finds, on the basis of defendants’ affidavits, that the searches were “reasonably

calculated to uncover all relevant documents.” Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir.

1983).

4 Any challenge to the adequacy of the FBI’s search is barred by plaintiff’s failure to
exhaust his administrative remedies for the reasons already explained by the Court.
17
 Plaintiff’s main objection to the adequacy of the agencies’ searches is that they did not

uncover all of the documents that he believes they should have. Pl.’s Opp. at 5–7. While the

defendants have uncovered over 4,000 documents, plaintiff posits that the searches were

deficient because he believes “the actual number of responsive documents currently in the

government’s possession. . . total[s] around 15,000.” Boehm Decl. [Dkt. # 42-1] ¶ 4; see also

Pl.’s Opp. at 5–6 (“[O]nly a fraction of the documents known to exist have to date been produced

or even cited for exemption by defendants. Of the nearly 15,000 documents Plaintiff

encountered as part of his criminal prosecution, only 4173 have been identified by defendants.”).

But plaintiff provides no support for his belief that the government possesses 15,000 responsive

documents or that a prosecution of an individual for the charges involved here would have

generated that volume of paper. 5 In addition, his argument does not account for any withheld

documents that originated from, and were in the possession of, the FBI at the time his requests

were received – which this Court has already determined that it may not review because plaintiff

failed to exhaust his administrative remedies to challenge the agency’s response to his request.

In addition, plaintiff does not identify any problems with the way in which the search was

conducted, but rather challenges the results of the search. However, “the issue to be resolved is

not whether there might exist any other documents possibly responsive to the request, but rather

whether the search for those documents was adequate.” Weisberg v. DOJ, 745 F.2d 1476, 1485

(D.C. Cir. 1984); Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)

(“[T]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by

the appropriateness of the methods used to carry out the search.”); see also Adionser v. DOJ, 811

5 The government does not indicate how many documents were used in plaintiff’s criminal
prosecution and since plaintiff ultimately pled guilty to the criminal charges against him, there is
no list of government exhibits on the public docket for his criminal case. Case No. 3:04-cr-
00003-JWS (D. Alaska).
18
F. Supp. 2d 284, 293 (D.D.C. 2011) (rejecting a plaintiff’s challenge to the adequacy of a search

because he challenged it “based on the results of the search rather than the actual method by

which” the search was conducted).

Plaintiff has provided no basis for the Court to find that the search in this case was

inadequate. This case is therefore distinguishable from the case he cites, Valencia-Lucena v.

U.S. Coast Guard, 180 F.3d 321, 326–28 (D.C. Cir. 1999), in which the D.C. Circuit found a

search for a particular document to be inadequate because the document was produced to the

requester with pages missing, and there were other obvious places and sources likely to turn up

the missing pages that had not been searched. Pl.’s Opp. at 5.

Plaintiff also argues that defendants’ searches failed to uncover documents related to his

criminal case that were mentioned in a report about prosecutorial misconduct in the case United

States v. Theodore F. Stevens, Case. No. 08-cr-231 (D.D.C. 2009), and that would have been

responsive to his request. Pl.’s Opp. at 6. According to plaintiff, this proves that the government

did not act in good faith in searching for responsive documents. Id. While it is true that a

plaintiff can rebut an agency’s initial demonstration of the adequacy of the search with evidence

that the search was not made in good faith, see Trans Union LLC v. FTC, 141 F. Supp. 2d 62, 69

(D.D.C. 2001), plaintiff has not made a showing of bad faith here. First, the report that plaintiff

cites does not contain any indication that the documents plaintiff claims should have been

released were created and retained by the CRM or the EOUSA. See Callaway v. U.S. Dep’t of

Treasury, 893 F. Supp. 2d 269, 275 (D.D.C. 2012), quoting Kissinger v. Reporters Comm. for

Freedom of the Press, 445 U.S. 136, 152 (1980) (“The FOIA ‘only obligates [an agency] to

provide access to those [documents] which it in fact has created and retained.”). Moreover, even

if the agencies have the documents, there is some possibility that they have been legitimately

19
withheld in full under a FOIA exemption. And although plaintiff argues vigorously that the

withholding of any of these documents would not be appropriate, Pl.’s Opp. at 6–7, that inquiry

is not part of the assessment of the adequacy of the search and it will be addressed in connection

with the Court’s assessment of defendants’ asserted FOIA exemptions on the merits. See infra

Section 4. Since plaintiff has presented no evidence that the CRM and the EOUSA did not

perform their searches in good faith, and since the agencies have demonstrated that their searches

were reasonably calculated to uncover all relevant documents, the Court finds that the searches

were adequate.

3. With certain exceptions, the Vaughn indices provided by defendants are adequate
and the Court need not review the withheld documents in camera.

Both the FBI and the EOUSA have provided plaintiff and the Court with Vaughn indices

of a representative sample of the withheld documents. Contrary to arguments advanced by

plaintiff, the fact that each entry in the indices is representative of other documents that have not

been individually indexed does not reveal any deficiency in the quality of the indices.

“Representative sampling is an appropriate procedure to test an agency’s FOIA exemption

claims when a large number of documents are involved.” Bonner v. U.S. Dep’t of State, 928

F.2d 1148, 1151 (D.C. Cir. 1991).

Moreover, defendants’ use of representative sampling complied with this Court’s

directions. Defendants first proposed proceeding by sampling in their status reports of May 12,

2011, [Dkt. # 14], and June 27, 2011, [Dkt. # 15]. By Minute Order of June 29, the Court

ordered plaintiff to notify the Court whether he intended to challenge some or all of the FOIA

exemptions that defendants asserted and, if so, to indicate whether he wanted to designate a

representative sample or have defendants propose the sample and allow him to supplement it as

may be appropriate. Plaintiff proceeded to file a motion for Vaughn Index, [Dkt. # 19], and a

20
notice of intent to challenge the government’s asserted FOIA exemptions, [Dkt. # 20]. He did

not oppose defendants’ proposal to proceed via sampling in either pleading and, in fact, in the

notice of intent, he stated that he wanted to designate the representative sample. See Notice of

Intent at 1.

By Minute Order of September 30, 2011, the Court ordered defendants to prepare the

representative sample of the documents it was withholding and transmit the sample to plaintiff

along with a letter explaining the representative nature of the sample by October 31, 2011. The

Minute Order also permitted plaintiff to designate any supplemental material by December 1,

2011. As explained above, defendants complied with the Minute Order, see Notice of

Designation of Representative Sample, [Dkt. # 22], but plaintiff did not designate any

supplemental material. At no point did plaintiff oppose defendants’ proposal to proceed via

sampling. The Vaughn indices now at issue index each of the documents in defendants’

representative sample. So, the Court cannot find that the categorical nature of the indices is

improper. See Bonner, 928 F.2d at 1151 (finding that since the representative sample was

selected by agreement of the parties, “[t]here is therefore no attack on the sample’s capacity to

represent the entire group of . . . documents”).

Although plaintiff complains that the Vaughn indices include “generically-grouped

categorical listings of documents,” Pl.’s Opp. at 10, both indices include specific descriptions of

each representative document, whether it is being withheld in full or in part, and specific

justifications for the withholding. See Hardy Decl. at 8–13, 17–18 (“FBI Index”); Attachments 1

& 2 to Luczynski Decl. (“EOUSA Index”). Along with this information, defendants have also

provided the Court with a copy of all of the redacted representative documents. Ex. P to Hardy

Decl. (FBI); Notice of Filing of Representative Sample [Dkt. # 45] (EOUSA). Except as noted

21
later in this Memorandum Opinion, defendants’ Vaughn indices and submissions satisfy the

requirement that an agency withholding information must “provide a relatively detailed

justification, specifically identifying the reasons why a particular exemption is relevant and

correlating those claims with the particular part of a withheld document to which they apply.”

Mead Data Cent., Inc. v. U.S. Dept. of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977).

Plaintiff’s other objections to the adequacy of the Vaughn indices – that there is no way

for the Court or plaintiff to determine where defendants searched for responsive materials or

indicate which agencies were in possession of which documents, and that the searches turned up

only a fraction of the nearly 15,000 documents it should have, Pl.’s Opp. at 10, – are merely

restatements of his objections to the adequacy of the agencies’ searches, which this Court has

already rejected.

Accordingly, the Court finds defendants’ Vaughn indices to be adequate – except as

specifically indicated later in this Memorandum Opinion – and the Court need not conduct an in

camera inspection of the documents. See PHE, Inc. v. DOJ, 983 F.2d 248, 253 (D.C. Cir. 1993),

quoting Schiller v. Nat’l Labor Relations Bd., 964 F.2d 120, 1209 (D.C. Cir. 1992) (“[I]n

camera review is generally disfavored. It is ‘not a substitute for the government’s obligation to

justify its withholding in publicly available and debatable documents.’”).

4. With certain exceptions, the FOIA exemptions defendants have invoked
adequately justify their withholdings

Plaintiff also challenges the specific FOIA exemptions under which defendants have

withheld information. The Court will assess each of them.

A. Exemption 3

Defendants relies on Exemption 3 to withhold information covered by 18 U.S.C.

§ 3509(d) and Federal Rule of Criminal Procedure 6(e).

22
 FOIA Exemption 3 authorizes the government to withhold information that is:

[S]pecifically exempted from disclosure by statute . . . if that statute

(A)(i) requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or

(ii) establishes particular criteria for withholding or refers to particular
types of matters to be withheld; and

(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009
[enacted Oct. 28, 2009], specifically cited to this paragraph.

5 U.S.C. § 552(b)(3).

Plaintiff concedes defendants properly invoked Exemption 3 to withhold the names and

identifying information of child victims and witnesses in plaintiff’s prosecution pursuant to the

Child Victims’ and Child Witnesses’ Rights Act, 18 U.S.C. § 3509(d), which statutorily prohibits

disclosure of those types of information. Pl.’s Opp. at 12. However, he objects to defendants’

invocation of Federal Rule of Criminal Procedure 6(e) as a basis for withholding information

concerning the grand jury proceedings in his criminal case. Defendants have withheld all

information obtained pursuant to a grand jury subpoena that was contained in an FBI report of

investigation, Hardy Decl. ¶ 40 & p. 11; names of grand jury witnesses, EOUSA Index at 1; and

a draft indictment, EOUSA Supplemental Vaughn Index at 9. They justify the withholding under

Federal Rule of Criminal Procedure 6(e), which bars disclosure of “matters occurring before [a]

grand jury.” Defs.’ Mem. at 12.

While Rule 6(e) is not so broad as to bar disclosure of all materials that a grand jury sees

or hears, it does cover information that would “tend to reveal some secret aspect of the grand

jury’s investigation 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,

23
and the like.” Senate of Puerto Rico v. DOJ, 823 F.2d 574, 582 (D.C. Cir. 1987) (internal

quotation marks omitted).

Plaintiff does not dispute that Federal Rule of Criminal Procedure 6(e) is a “statute” for

purposes of Exemption 3 or that it prohibits disclosure of matters occurring before a grand jury.

Pl.’s Opp. at 12–13; see also Fund for Constitutional Govt. v. Nat’l Archives & Records Serv.,

656 F.2d 856, 867 (D.C. Cir. 1981). Instead, he argues that since there is no reasonable

expectation that the identities of the testifying witnesses would remain secret, the withholding of

that information is improper. 6 Pl.’s Opp. at 12–13. According to plaintiff, the names of most of

the “purported victims who testified in the grand jury,” have been revealed to the public at the

sentencing hearing, through television, radio, or other media, and through civil suits that some or

all of the victims brought against plaintiff for which they gave depositions that have become a

part of the public record. 7 Pl.’s Opp. at 13. However, plaintiff cites no case law to support the

theory that the public disclosure of any of this type of information makes 6(e) inapplicable, and

he has submitted no evidence that any of this information has actually been made public. He

offers only conclusory assertions.

Notwithstanding both parties’ failures to produce any case law on this issue, there is

relevant precedent from this Circuit. Although “Rule 6(e) does not create a type of secrecy

6 Plaintiff also argues that it is improper to withhold the identities of individuals on the
grand jury, Pl.’s Opp. at 12–13, but since there is no indication that this information is being
withheld, the Court will not address that argument.

7 Although it is unclear whether plaintiff is also arguing that the public domain exception
to the agencies’ assertions of Exemption 3 applies here, the Court notes that such an argument
also fails. Under the public domain exception, information preserved in a public record is not
exempt from disclosure through any FOIA exemption. See Marino v. DEA, 729 F. Supp. 2d 237,
244 (D.D.C. 2010). The requester bears the burden of demonstrating that the information sought
is already in the public domain. See id., citing Davis v. DOJ, 968 F.2d 1276, 1279 (D.C. Cir.
1992). Plaintiff has not met that burden here.
24
which is waived once public disclosure occurs,” In re North, 16 F.3d 1234, 1245 (D.C. Cir.

1994), quoting Barry v. United States, 740 F. Supp. 888, 891 (D.D.C. 1990), the D.C. Circuit has

found that “when information is sufficiently widely known” it can lose its character as Rule 6(e)

material. In re Motions of Dow Jones & Co., 142 F.3d 496, 505 (D.C. Cir. 1998). In that case,

the D.C. Circuit released the identity of a person subpoenaed to appear before the grand jury

after his attorney had publicized that fact. Id.; see also In re North, 16 F.3d at 1245 (finding that

Rule 6(e) did not bar release of a report containing grand jury material because the information

in the report had been widely publicized); In re Grand Jury Subpoena, Judith Miller, 493 F.3d

152, 154 (D.C. Cir. 2007) (“Although not every public disclosure waives Rule 6(e) protections,

one can safely assume that the ‘cat is out of the bag’ when a grand jury witness – in this case

Armitage – discusses his role on the CBS Evening News.”). So although defendants casually

dismiss plaintiff’s argument as “miss[ing] the mark,” Defs.’ Reply at 7, it has some teeth.

The problem here, though, is that plaintiff has not supplied the Court with any evidence

that the information being withheld was widely publicized or even disclosed to the public at all.8

Thus, there is no basis to conclude that the evidence withheld, which often does remain secret,

has become such a matter of public record that Exemption 3 should not apply.

Plaintiff also argues that the government’s assertion of Exemption 3 is too broad:

“Nothing in the case law supports the proposition that the government can simply state that all

responsive grand jury documents fall within the exemption . . . .” Pl.’s Opp. at 13. In this

8 The Court seriously questions whether information concerning the identity of minor
witnesses would have been made part of the public record at the plea or at the time of sentencing.
One cannot tell from a review of the criminal docket on PACER since the records that pre-date
plaintiff’s attempts to obtain post-conviction relief were submitted in paper form before the
District Court of Alaska made the change to electronic filing. But the fact that plaintiff’s new
counsel sought access to records under seal, see Mot. Requesting Access to Docs. Filed Under
Seal, United States v. Boehm, Case No. 3:04-cr-00003-JWS (D. Alaska July 16, 2010) [Dkt.
# 1011], suggests that at least some aspects of the prosecution were not a matter of public record.
25
circuit, “[t]he disclosure of information ‘coincidentally before the grand jury [which can] be

revealed in such a manner that its revelation would not elucidate the inner workings of the grand

jury’ is not prohibited.” Senate of Puerto Rico, 823 F.2d at 582, quoting Fund for Constitutional

Gov’t, 656 F.2d at 870. But the EOUSA has given more detailed descriptions of the withheld

grand jury documents than plaintiff indicates. The Vaughn index describes the type of

information that was withheld: the names of grand jury witnesses and other contextual

information that could lead to the derivation of the name from letters that were exchanged by

attorneys, EOUSA Index at 1, and a draft of a grand jury indictment, EOUSA’s Supplemental

Index at 9. The Court is satisfied that this information would tend to reveal the secret workings

of the grand jury and has been appropriately withheld. 9 See Senate of Puerto Rico, 823 F.2d at

582.

However, the description of the one representative document that the FBI has withheld

under Rule 6(e) is vague: “FBI FD-302 form, Information obtained pursuant to Federal Grand

Jury subpoena.” Hardy Decl. at 11 (BOEHM-2738). The Hardy declaration does little more to

clarify the basis for the withholding. Hardy states, “Exemption [3] has been asserted to protect

information obtained pursuant to a Grand Jury Subpoena on page BOEHM-2738. Disclosure of

this material would clearly violate the secrecy of the grand jury proceedings and could reveal the

inner workings of the Federal Grand Jury that considered this case.” Hardy Decl. ¶ 40. But this

description is not detailed enough for the Court to determine whether disclosure of the particular

record would reveal some secret aspect of the grand jury’s investigation or whether the

information was simply peripheral to the grand jury investigation. See Senate of Puerto Rico,

9 In addition, this information has been withheld under other FOIA exemptions that the
Court will uphold. See EOUSA Index at 1 (also invoking Exemptions 7(C) and 7(F); EOUSA’s
Supplemental Index at 9 (also invoking Exemption 3 and 5).
26
823 F.2d at 582. Is the FBI 302 an agent’s summary of material submitted to the grand jury

pursuant to subpoena? A witness interview? Accordingly, the Court will remand representative

document BOEHM-2738 and the other responsive documents it represents to the agency for

closer review and supplementation of the basis for the withholding.

Moreover, the Luczynski declaration explains that the U.S. Attorney’s Offices may not

have even processed some documents that might have been responsive to plaintiff’s request if

they were found to be “related to the grand jury.” Luczynski Decl. ¶ 11. But Rule 6(e) is not so

broad; it shields matters “occurring before the grand jury.” So, the EOUSA has not provided a

sufficient factual basis – or legal support – for its position that these materials are categorically

exempt from not only disclosure but any FOIA processing. This set of materials will therefore

also be remanded for further processing and a supplementation of the record.

B. Exemption 5

Exemption 5 allows agencies to withhold records if the requested documents include

“inter-agency or intra-agency memorandums or letters which would not be available by law to a

party other than an agency in litigation with the agency[.]” 5 U.S.C. § 552(b)(5). In determining

whether a document was properly withheld under Exemption 5, a court must ensure that the

document satisfies two conditions: (1) “its source must be a Government agency, and [(2)] it

must fall within the ambit of a privilege against discovery under judicial standards that would

govern litigation against the agency that holds it.” Dep’t of Interior v. Klamath Water Users

Protective Ass’n, 532 U.S. 1, 8 (2001). These privileges include the attorney work product and

deliberative process privileges. Id. Because the documents originated from the FBI and from

the EOUSA (which is a section within DOJ), the first prong is not at issue here. The Court

27
therefore will examine only the second prong of the standard articulated in Klamath: whether

the withheld documents are protected by the claimed privilege. 532 U.S. at 8.

Plaintiff concedes that “[t]o the extent that defendants have provided sufficient

information regarding withheld documents that may be determined to be attorney work product

or otherwise civilly privileged . . . those documents are likely properly withheld.” Pl.’s Opp. at

15. But he continues: “To the extent that such documentation contains witness statements or

any other exculpatory or mitigating Brady materials[,] however, the government must segregate

the exempted information and provide the remaining factual information.” Id. Plaintiff provides

no support for the proposition that exculpatory or Brady materials cannot be withheld under

Exemption 5. And although neither party provides any relevant precedent, there is case law from

this circuit that expressly negates that theory. See Williams & Connolly v. Sec. & Exch.

Comm’n, 662 F.3d 1240, 1245 (D.C. Cir. 2011) (“[D]isclosure in criminal trials is based on

different legal standards than disclosure under FOIA, which turns on whether a document would

usually be discoverable in a civil case. . . . If [plaintiff’s counsel] believes that its client should

have received the notes during his criminal trial, FOIA is neither a substitute for criminal

discovery . . . nor an appropriate means to vindicate discovery abuses . . . .”) (citations omitted).

Plaintiff also argues – without pointing to any specific documents – that the Vaughn

index is not sufficiently detailed and that there is no indication that the agency has released all

segregable information. Pl.’s Opp. at 9–11. The Court disagrees. The FBI and EOUSA’s

Vaughn indices as well as the EOUSA’s supplemental Vaughn index, combined with the

explanations in the Hardy and Luczynski declarations, give detailed descriptions of the

information that has been withheld, and reveal that the agencies released segregable

28
information. 10 Since plaintiff offers no evidence that the descriptions in the declarations are

false, the Court finds them to be sufficient. See Military Audit Project v. Casey, 656 F.2d 724,

738 (D.C. Cir. 1981) (“[I]t is now well established that summary judgment on the basis of such

agency affidavits is warranted if the affidavits describe the documents and the justifications for

nondisclosure with reasonably specific detail, demonstrate that the information withheld

logically falls within the claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.”).

Accordingly, the Court will uphold defendants’ Exemption 5 withholdings.

C. Exemption 7(C)

FOIA Exemption 7(C) exempts documents compiled for law enforcement that “could

reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C.

§ 552(b)(7)(C). Because this is a lower standard than the standard for Exemption 6, which

requires a “clearly unwarranted” invasion of privacy, id. 552(b)(6) (emphasis added), the Court

will address Exemption 7(C) before it addresses Exemption 6.

In order for particular records to qualify for this exemption, the agency must first

demonstrate that the documents were compiled for law enforcement purposes. See Rural Hous.

Alliance v. U.S. Dep’t of Agric., 498 F.2d 73, 80 (D.C. Cir. 1974). Both the Luczynski and

Hardy declarations state that all of the information at issue was compiled for law enforcement

purposes because it was compiled to as part of the investigation and criminal prosecution of

plaintiff. Luczynski Decl. ¶ 21; Hardy Decl. ¶ 42. Plaintiff does not contest those assertions.

10 For example, document number 6 in the EOUSA’s Vaughn index is described as “a
printout of . . . an online news article from the ‘Alaska News.’ The only redactions are
handwritten notes on the margin which contained attorney thoughts and observations about the
matter.” EOUSA Index at 3.
29
 This Circuit has consistently held that, where a FOIA request for law enforcement

records invokes the privacy interests of any third party mentioned in those records (including

investigators, suspects, witnesses, and informants), the exemption applies unless there is an

overriding public interest in disclosure. See Schrecker v. DOJ, 349 F.3d 657, 661 (D.C. Cir.

2003); Lewis v. DOJ, 609 F. Supp. 2d 80, 84 (D.D.C. 2009). So the first step in any Exemption

7(C) analysis is to determine whether any privacy interest exists, and then the court balances the

privacy interest against the public interest in disclosure. See, e.g., People for the Ethical

Treatment of Animals v. Nat’l Insts. of Health Dep’t of Health & Human Servs., 853 F. Supp. 2d

146, 154–59 (D.D.C. 2012).

a) There is a privacy interest in the withheld information

According to the Luczynski and Hardy declarations, as well as the Vaughn indices, the

information withheld under Exemption 7(C) is identifying information – including names,

addresses, phone numbers, e-mail addresses, social security numbers, license plate numbers,

birth dates, job descriptions, ages, and photographs – of child victims, third parties of

investigative interest, third parties who provided information to the FBI or local law

enforcement, potential witnesses in plaintiff’s criminal case, other third parties, local law

enforcement officers, FBI Special Agents, FBI support employees, and non-FBI federal

governmental personnel. Hardy Decl. ¶¶ 45–46; Luczynski Decl. ¶¶ 21–23.

“As a general rule, third-party identifying information contained in [law enforcement]

records is ‘categorically exempt’ from disclosure.” Lazaridis v. U.S. Dep’t of State, -- F. Supp.

2d --, Civ. A. No. 10-1280(RMC), 2013 WL 1226607, at *12 (D.D.C. Mar. 27, 2013), citing

Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995)

(stating that under Exemption 7(C), an agency may “redact the names, addresses, or other

30
identifiers of individuals mentioned in investigatory files in order to protect the privacy of those

persons”); see also Dunkelberger v. DOJ, 906 F.2d 779, 781 (D.C. Cir. 1990), quoting Stern v.

FBI, 737 F.2d 84, 91–92 (D.C. Cir. 1984) (“Exemption 7(C) takes particular note of the ‘strong

interest’ of individuals, whether they be suspects, witnesses, or investigators, ‘in not being

associated unwarrantedly with alleged criminal activity.’”).

Plaintiff concedes that the exemption applies to identifying information about child

victims and witnesses. Pl.’s Opp. at 17. However, he argues that there is no privacy interest in

the identities of the local law enforcement officers who have appeared in the press concerning

his criminal case. 11 Id. It is well established that Exemption 7(C) protects the identities of local

law enforcement officers. See, e.g., Thompson v. DOJ, 851 F. Supp. 2d 89, 99–101 (D.C. Cir.

2012); Negley v. FBI, 825 F. Supp. 2d 63, 70–73 (D.D.C. 2011); Adionser v. DOJ, 811 F. Supp.

2d 284, 299 (D.D.C. 2011). And while there is some support for the notion that a private citizen

waives her privacy interest in information when she voluntarily brings that information into the

public domain, see Nation Magazine, 71 F.3d at 896, plaintiff has not met his burden of showing

that has occurred here. To establish that a privacy interest has been waived, the plaintiff bears

the burden of showing that the information: “(1) is ‘as specific as the information previously

released’; (2) ‘match[es] the information previously disclosed’; and (3) ‘was made public

through an official and documented disclosure.’” McRae v. DOJ, 869 F. Supp. 2d 151, 165

(D.D.C. 2012), quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). Plaintiff has not

met that burden here. As described above, plaintiff has presented no evidence that any

11 Plaintiff actually discusses the privacy interest in disclosure in the section of his
opposition concerning Exemption 6, not Exemption 7(C). However, because both Exemptions 6
and 7(C) require a balancing of the privacy interest in the withheld information against the public
interest in disclosure, the Court will consider his privacy interest arguments in assessing the
government’s application of Exemption 7(C).
31
individual publicly disclosed his or her role in his criminal prosecution, much less that the

information publicly disclosed is the same as the information being withheld. See Span v. DOJ,

696 F. Supp. 2d 113, 122 (D.D.C. 2010), quoting Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir.

1999) (“Because Span has not identified any specific information or . . . ‘the exact portions’ of a

specific document that is in fact ‘preserved in a permanent public domain,’ his public domain

challenge fails.”). Accordingly, the Court finds a substantial privacy interest in the withheld

identifying information.

b) The privacy interest at stake outweighs the public’s interest in disclosure.

Where a legitimate privacy interest exists, the requester must “(1) show that the public

interest sought to be advanced is a significant one, an interest more specific than having the

information for its own sake, and (2) show the information is likely to advance that interest.”

Boyd v. DOJ, 475 F.3d 381, 387 (D.C. Cir. 2007), quoting Nat’l Archives & Records Admin. v.

Favish, 541 U.S. 157, 172 (2004) (internal quotation marks omitted). The Supreme Court has

determined that the only relevant public interest for purposes of Exemption 7(C) is “the citizens’

right to be informed about what their government is up to.” DOJ v. Reporters Comm. for

Freedom of the Press, 489 U.S. 749, 773 (1989) (internal quotation marks omitted). In

determining whether to disclose a document, a court must weigh “the nature of the requested

document and its relationship to the basic purpose of the Freedom of Information Act to open

agency action to the light of public scrutiny.” Id. at 772, quoting Dep’t of Air Force v. Rose, 425

U.S. 352, 372 (1976). “That purpose, however, is not fostered by disclosure of information

about private citizens that is accumulated in various governmental files but that reveals little or

nothing about an agency’s own conduct.” Id. at 773. Moreover, courts in this Circuit have

consistently held that where an individual seeks law enforcement records that implicate the

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privacy interests of a third party, the requester bears the burden of asserting the public interest at

play. See, e.g., Boyd, 475 F.3d at 387; Lewis, 609 F. Supp. 2d at 84; Fischer v. DOJ, 596 F.

Supp. 2d 34, 47 (D.D.C. 2009). Law enforcement records may be withheld under Exemption

7(C) “if the privacy interest at stake outweighs the public’s interest in disclosure.” Nation

Magazine, 71 F.3d at 893 (citations omitted).

Plaintiff argues that the public interest here is government wrongdoing. “Plaintiff is

trying to obtain information to show that the government had a pattern of failing to disclose

material information, specifically information relating to Bill Allen or anyone connected with

him.” Pl.’s Opp. at 19. And plaintiff submits portions of reports about prosecutorial misconduct

in the Theodore Stevens case that he claims prove that misconduct occurred in his case as well.

See Att. 1, 2 to Boehm Decl. However, the portions of the reports plaintiff provides do not

reveal any misconduct in his own criminal case – rather, they reveal prosecutorial misconduct in

the Stevens case that arose because the prosecutor did not disclose information to the Stevens

defense team that it had disclosed during plaintiff’s case. Id. So, those portions of the reports do

not tend to suggest that prosecutorial misconduct occurred in plaintiff’s criminal case. See, e.g.,

Hodge v. FBI, 703 F.3d 575, 581 (D.C. Cir. 2013) (finding that a requester failed to establish a

valid public interest because he did not “produce evidence that would warrant a belief by a

reasonable person that the alleged Government impropriety might have occurred”), quoting

Favish, 541 U.S. at 174; Blackwell v. FBI, 646 F.3d 37, 41 (D.C. Cir. 2011) (same).

Plaintiff also argues that withholding information as to which authorities investigated him

for his criminal case raises Sixth Amendment concerns because “who these individuals were and

who they spoke with is relevant to the determination of whether evidence was properly compiled

and disclosed in his case.” Pl.’s Opp. at 19. This argument fails because, as described above,

33
disclosure in a FOIA case is governed by different standards than disclosure in a criminal case.

The only factors relevant to the Exemption 7(C) analysis are the privacy interest and the public

interest in disclosure. “That the [agency]’s denial of his FOIA requests may hinder his efforts to

challenge his conviction or sentence . . . is irrelevant.” Pugh v. FBI, 793 F. Supp. 2d 226, 232–

33 (D.D.C. 2011), citing Oguaju v. United States, 378 F.3d 1115, 1116–17 (D.C. Cir. 2004).

Because plaintiff has failed to identify any public interest that would overcome the

privacy interest protected by Exemption 7(C), the Court concludes that defendants’ withholdings

were proper. And because the withholdings were proper under Exemption 7(C), the Court need

not consider Exemption 6. 12

D. Exemption 7(D)

FOIA Exemption 7(D) protects against the disclosure of the identities of confidential

informants. The provision states that “in the case of a record or information compiled by

criminal law enforcement authority in the course of a criminal investigation,” any “information

furnished by a confidential source” is exempt from FOIA’s disclosure requirement. 5 U.S.C. §

552(b)(7)(D). Under this exemption, a person is considered a confidential source “if the person

provided information under an express assurance of confidentiality or in circumstances from

which such an assurance could be reasonably inferred.” Parker v. DOJ, 934 F.2d 375, 378 (D.C.

Cir. 1991).

Plaintiff expresses doubt that the government actually used any confidential informants in

this criminal case. See Pl.’s Opp. at 21 (“[T]here was never information revealed during the

prosecution of Mr. Boehm that the government had any confidential sources. . . . there is no

12 According to the Hardy declaration, the FBI has also invoked Exemption 2 to protect
internal telephone numbers of FBI personnel. Hardy Decl. ¶ 33. Because the Court finds that
this information was properly withheld under Exemption 7(C), it will not reach Exemption 2.
34
indication that any discussions of confidentiality ever took place between witnesses and

investigators.”). However, he provides no evidence that confidential informants were not used in

his case or that the government ever represented to him that no confidential informants were

used. So the Court must assess whether defendants have made a sufficient showing that the

individuals being protected were confidential informants.

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,” DOJ v. Landano, 508 U.S. 165, 181 (1993), and a source’s

confidentiality must be determined on a case-by-case basis, id. at 179–80. In this circuit, “the

violence and risk of retaliation attendant to drug trafficking warrant an implied grant of

confidentiality to a source.” Higgins v. DOJ, -- F. Supp. 2d --, Civ. A. No. 10-1485(RLW), 2013

WL 358177, at *12 (D.D.C. Jan. 30, 2013), citing Mays v. DEA, 234 F.3d 1324, 1329 (D.C. Cir.

2000).

The Luczynski declaration provides that under Exemption 7(D), the EOUSA withheld

“the identities of individuals and material that the individuals provided in connection with the

investigation of plaintiff for violation of the federal criminal laws.” Luczynski Decl. ¶ 27.

According to Lucynski, the withholdings include “information that was provided with an express

assurance of confidentiality, as well as information from which the assurance of confidentiality

could be reasonably inferred.” Id. The declaration, however, offers no explanation about how

the EOUSA determined that an assurance of confidentiality existed. As to the information that

was determined to have been provided under an express assurance of confidentiality, the

declaration does not indicate what markings or labels on the documents lead the EOUSA to that

conclusion. And as to the information that was determined to have been provided under an

35
implied assurance of confidentiality, the declaration does not explain whether the information

concerned drug trafficking, or whether there was some other reason why the EOUSA concluded

that the an assurance of confidentiality had been implied. So, the Court cannot find that the

EOUSA has met its burden with respect to the material it has withheld under this exemption, and

it will remand these documents to the agency for a supplementation of the basis for the

withholding.

The FBI provides a more detailed picture of the FBI records being withheld under this

exemption. The Hardy declaration divides the types of information withheld into categories.

First, the FBI withheld the confidential informant file numbers and permanent source

symbol numbers of certain informants given express assurances of confidentiality. Hardy Decl.

¶¶ 61–65.

Second, the FBI withheld the names and identifying data of, and information provided

by, individuals who assisted in the investigation of plaintiff and others with an express assurance

of confidentiality. Id. ¶¶ 66–68. According to the declaration, the express assurance of

confidentiality is demarcated with designations of “Protected Identify,” “Cooperating Witness,”

or “Cooperating Source.” Id. ¶ 66. This information is sufficient for the Court to determine that

the information withheld was from confidential sources.

Finally, the FBI withheld the names, identifying information and information provided by

individuals under an implied assurance of confidentiality. Hardy Decl. ¶¶ 59–60. The Hardy

declaration explains that the individuals “were reporting on distribution of cocaine to individuals

under the age of 18, often for purposes of sexual gratification.” Id. ¶ 59. Therefore, according to

the Hardy declaration, “it can be implied that these individuals would reasonably fear that

disclosure of their identity would place them in danger, because other individuals who had

36
involvement with the defendants were not incarcerated, including traffickers in narcotics.” Id.

¶ 59. The declaration also states that the only information that has been withheld is the

individual’s name and the information that the individual provided, but only to the extent that the

information would identify the individual. Id. This description of the individuals and the

withheld information makes clear that the individuals being protected were reporting on the type

of activities that warrant an implied grant of confidentiality. Moreover, it provides a rationale

for protecting the information so that the protected individuals will not be subject to reprisal and

so that it does not dissuade others from reporting information in the future. Id. Accordingly, the

FBI has demonstrated that withholding the information is proper. See Higgins, 2013 WL

358177, at *12–13.

Plaintiff also claims that even if discussions of confidentiality did occur, “most testifying

individuals in this case later publicly identified themselves via radio, newspaper stories,

television interview, public lawsuits, or allowed their names to be used in a published book.”

Pl.’s Opp. at 21. But, as already described, plaintiff provides no evidence that any informants in

his case later publicly identified themselves, let alone evidence that they identified themselves in

a way that would waive the protection of Exemption 7(D). See Parker, 934 F.2d at 378, quoting

Dow Jones & Co. v. DOJ, 908 F.2d 1006, 1011 (D.C. Cir. 1990) (finding that the protection of

7(D) is only waived if “the exact information given to the FBI has already become public, and

the fact that the informant gave the same information to the FBI is also public”).

Plaintiff finally argues that since the government had no confidential sources, it is most

likely claiming Exemption 7(D) to withhold information from “the sources that it did have under

the erroneous theory that such an exemption may be claimed for anyone communicating with the

government regarding a criminal investigation.” Pl.’s Opp. at 22. But since plaintiff has failed

37
to establish that the government did not utilize confidential sources – either with express or

implied assurances of confidentiality – and since the government denies invoking Exemption

7(D) as broadly as plaintiff implies, Defs.’ Reply at 10; Luczynski Decl. ¶ 27; Hardy Decl.

¶¶ 59–68, and there is no evidence of bad faith, the Court will not adopt plaintiff’s theory.

E. Exemption 7(E)

Exemption 7(E) protects from disclosure law enforcement records “to the extent that the

production of such . . . information . . . would disclose techniques and procedures for law

enforcement investigations of prosecutions, or would disclose guidelines for law enforcement

investigations of prosecutions if such disclosure could reasonably be expected to risk

circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Plaintiff does not dispute that the records at

issue here were compiled for law enforcement purposes. Pl.’s Opp. at 22.

“Exemption 7(E) sets a relatively low bar for the agency to justify withholding: Rather

than requiring a highly specific burden of showing how the law will be circumvented, 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.’” Blackwell v. FBI, 646 F.3d 37, 42

(D.C. Cir. 2011) (alteration in original) (internal quotation marks omitted).

The FBI is the only agency that has invoked Exemption 7(E) to withhold responsive

records. It has withheld three types of records under that exemption. First are documents

showing methods of data collection, organization and presentation contained in ChoicePoint

reports and discussion of ChoicePoint records in FBI electronic communications. The Hardy

declaration explains that although the data contained in the sources is publicly available, the

manner in which the data is searched, organized and reported to the FBI is an internal technique

that is not known to the public. Hardy Decl. ¶ 72. Therefore, the disclosure of the reports and

38
information about their design and makeup could enable criminals to employ countermeasures to

avoid detection. Hardy Decl. ¶ 71. The D.C. Circuit has upheld the FBI’s withholding of

records to protect methods of data collection, organization, and presentation contained in

ChoicePoint reports under the same justifications that the FBI has provided here. Blackwell v.

FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). Because the FBI has provided sufficient information for

the Court to find that disclosure of the ChoicePoint reports and the electronic communications

about them might create a risk of circumvention of the law, the Court finds the withholdings to

be proper.

Second, the FBI has withheld information in form FD-515 FBI Accomplishment Reports

“which would reveal the use of specific investigative assistance or techniques in this case.”

Hardy Decl. ¶ 73. FD-515 forms are used by FBI Special Agents to report investigative

accomplishments, such as arrests, indictments, or convictions. Id. at 10 n.10. Only one FD-515

report appears on the FBI’s Vaughn index and the index indicates that it was withheld in part. Id.

at 10. At least three courts in this district have upheld the agency’s withholding of an entire FBI-

515 form. Perrone v. FBI, 908 F. Supp. 24, 28 (D.D.C. 1995); Putnam v. DOJ, 873 F. Supp.

705, 717 (D.D.C. 1995); Delviscovo v. FBI, 903 F. Supp. 1, 3 (D.D.C. 1995). The Court finds

that the FD-515 Accomplishment reports were appropriately withheld in this case based on the

explanation in the Hardy declaration that disclosure of the special investigative assistance or

techniques used in this case might reasonably create a risk of circumvention of those techniques.

Other courts in this district have found that the ratings column of the form FD-515 is properly

withheld under Exemption 7(E). See, e.g., Sellers v. DOJ, 684 F. Supp. 2d 149, 164 (D.D.C.

2010); Concepcion v. FBI, 606 F. Supp. 2d 14, 43 (D.D.C. 2009); Peay v. DOJ, No. 04-1859,

39
2007 WL 788871, at *6 (D.D.C. Mar. 14, 2007). Accordingly the Court will uphold the

agency’s partial withholding of the representative FD-515 report.

Third, the FBI has withheld an FBI/Police Operational Plan and information pertaining to

the techniques used to facilitate the activity of a source. Hardy Decl. ¶ 73. Again, the Hardy

declaration states that if criminals were alerted to this information, they would be able to alter

their behavior in ways that would diminish the ability of law enforcement to rely on this type of

information. Id. The Court finds that to be an appropriate justification for withholding the

information under Exemption 7(E) because it explains how disclosure could reasonably be

expected to risk circumvention of the law.

Plaintiff’s objections to these withholdings are not clearly delineated. It appears that he

objects to the withholding of any documentation relating to “improper coaching of testimony”

because such a technique is not legal. Pl.’s Opp. at 23. But he cites no precedent for this

assertion, and in any event, the description of the withheld materials reflect that they relate to

investigatory techniques and not to witness preparation for Court testimony.

Accordingly, the Court finds that the FBI’s withholdings under Exemption 7(E) are

proper, that the Vaughn index describes the withheld material in sufficient detail, and that the

FBI has met its burden of showing that all segregable material was released.

F. Exemption 7(F)

Exemption 7(F) exempts from disclosure information compiled for law enforcement

purposes to the extent that disclosure “could reasonably be expected to endanger the life or

physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). Again, plaintiff does not oppose

defendants’ assertion that the documents at issue here were compiled for law enforcement

purposes. Pl.’s Opp. at 23–24. In determining whether Exemption 7(F) applies, courts look for

40
some nexus between disclosure and possible harm and whether deletions were narrowly made to

avert the possibility of such harm. Albuquerque Publ’g Co. v. DOJ, 726 F. Supp. 851, 858

(D.D.C. 1989).

The Luczynski declaration reveals that the EOUSA has withheld identifying information

about individuals who work for the government or who provided information in the course of an

investigation under Exemption 7(F). Luczynski Decl. ¶¶ 29–30. According to the declaration,

there may be individuals still at large who were involved with the cocaine trafficking and sexual

exploitation of underage women that was the focus of the investigation into plaintiff. Id. ¶ 29.

Although plaintiff argues that defendants proffer no evidence that the investigation into plaintiff

concerned any violence, Pl.’s Opp. at 24, courts in this circuit typically consider a conspiracy to

distribute cocaine to be “a violent enterprise, in which a reputation for retaliating against

informants is a valuable asset . . . .” Mays, 234 F.3d at 1331. In addition, this exemption has

generally been interpreted “to apply to names and identifying information of law enforcement

officers, witnesses, confidential informants and other third persons who may be unknown to the

requester.” Anotonelli v. Fed. Bur. Of Prisons, 823 F. Supp. 2d 55, 58 (D.D.C. 2009).

Therefore, the Court finds that the EOUSA has established that disclosure of the withheld

information – identifying information about informants and individuals who work for the

government – could reasonably be expected to endanger the safety of those individuals by

making them available to un-detained participants in the cocaine trafficking and sexual

exploitation activities that were the focus of the investigation into plaintiff. On that basis, the

Court finds that the EOUSA’s withholdings under Exemption 7(F) were proper.

41
 According to the Hardy declaration, the FBI has asserted Exemption 7(F) to protect a law

enforcement interview with plaintiff. Hardy Decl. ¶ 75. 13 The basis for the withholding is that

the release of the interview could reasonably be expected to endanger the life and/or physical

safety of plaintiff. Plaintiff challenges this justification, stating that “it seems unlikely that

plaintiff, knowing the existence of this document, would seek its disclosure if doing so would

result in a threat on his life . . . .” Pl.’s Opp. at 24.

Generally this exemption protects the identities of federal employees, informants, and

third persons who may be unknown to the requester, Durham v. DOJ, 829 F. Supp. 428, 434

(D.D.C. 1993), and neither party provides any case law about whether Exemption 7(F) can

properly be asserted to protect the safety of the requester himself. The Court has identified only

one relevant opinion from this district. Mosby v. Hunt, Civ. A. No. 09-1917(JDB), 2010 WL

2794250, at *1 (D.D.C. July 15, 2010), summarily affirmed 2011 WL 3240492 (D.C. Cir. July 6,

2011). In Mosby, the government asserted Exemption 7(F) over certain redactions under the

theory that “release of the redacted information creates a safety risk mostly to plaintiff.” Id. The

court observed that “by its terms, Exemption 7(F) protects ‘any individual,’” which could be read

to include even the requester of the information. Id. at *1 (emphasis added). It ultimately

decided that the redactions were proper because the agency “reasonably determined that the

disclosure of the withheld information could ‘jeopardize the safety of individuals(s),’ [sic]

including plaintiff.” Id.

In a different case, Ray v. FBI, another court in this district declined to protect the

identifying information of the FOIA requester in a document responsive to his request, even

though the information was about the requester’s activities as a confidential informant, which

13 The pages being withheld are BOEHM 3853–3858. Hardy Decl. ¶ 75 n.38.
42
was entitled to protection under Exemption 7(D). 441 F. Supp. 2d 27, 37 (D.D.C. 2006) (“In

light of [plaintiff’s] apparent waiver [of exemption 7(D)’s confidential informant protection], the

Court is not inclined to protect plaintiff from information about himself.”)

Here, the only individual that the FBI is seeking to protect is plaintiff. Hardy Decl. ¶ 75.

Given that plaintiff has waived any concern for his own safety, the Court finds that Exemption

7(F) is inapplicable. However, since the FBI has also asserted Exemptions 6 and 7(C) over

portions of the interview, See Hardy Decl. at 12, the Court will remand to the agency to release

all portions of the interview that are being withheld under Exemption 7(F), but not under

Exemptions 6 or 7(C).

Finally, plaintiff opposes defendants’ assertion of Exemption 7(F) on the basis that most

of the individuals whose information is being protected have already been publicly identified

through their own lawsuits or actions or by way of the investigation into the Stevens case. Pl.’s

Opp. at 25. As the Court has already discussed in detail, this argument fails because plaintiff

fails to submit evidence that any particular individual publicly identified him or herself or that

the information publicly disclosed is the same as the information being protected here.

5. Defendants have met their burden of showing that they extracted segregable
portions of responsive records.

FOIA expressly requires agencies to extract “[a]ny reasonably segregable portion of a

record” and provide it to the requesting party “after deletion of the portions which are exempt.”

5 U.S.C. § 552(b)(9). “[I]t has long been the rule in this Circuit that non-exempt portions of a

document must be disclosed unless they are inextricably intertwined with exempt

portions.” Wilderness Soc’y v. U.S. Dep’t of Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004),

quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).

Agencies and courts must “differentiate among the contents of a document rather than treat it as

43
an indivisible ‘record’ for FOIA purposes.” Abramson, 456 U.S. at 626. Regardless of whether

a party actually challenges an agency’s determination on the segregability of requested records, a

district court must not “simply approv[e] the withholding of an entire document without entering

a finding on segregability, or the lack thereof.” Schiller v. Nat’l Labor Relations Bd., 964 F.2d

1205, 1210 (D.C. Cir. 1992) abrogated on other grounds by Milner v. Dep’t of Navy, 131 S. Ct.

1259, 1271 (2011) (internal quotation marks omitted); see also Sussman v. U.S. Marshals Serv.,

494 F.3d 1106, 1116 (D.C. Cir. 2007) (“If the district court approves withholding without such a

finding [of segregability], remand is required even if the requester did not raise the issue of

segregability before the court.”). The district court’s findings of segregability must be

“specific.” Sussman, 494 F.3d at 1116.

The government bears the burden of demonstrating that no reasonably segregable

material exists in the withheld documents. Army Times Publ’g Co. v. Dep’t of Air Force, 998

F.2d 1067, 1068 (D.C. Cir. 1993). The agency must “provide[] a ‘detailed justification’ and not

just ‘conclusory statements’ to demonstrate that all reasonably segregable material has been

released.” Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C. 2010); see also Armstrong, 97 F.3d

at 578 (affirming summary judgment where government affidavits explained non-segregability

of documents with “reasonable specificity”). The government may meet its obligation of

“reasonable specificity” with “[t]he combination of the Vaughn index and [agency] affidavits.”

Johnson v. Exec. Office for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002); see also Loving v.

Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008). Whether the Vaughn index is sufficient “turns

on whether the agency has sufficiently explained why there was no reasonable means of

segregating factual material from the claimed privilege material.” Wilderness Soc’y, 344 F.

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Supp. 2d at 18. “[A] blanket declaration that all facts are so intertwined” is not sufficient to meet

this burden. Id. at 19.

The Court finds that, except where identified above, defendants have met their burden of

showing with reasonable specificity that they disclosed all segregable material. Throughout the

Hardy declaration, the declarant consistently identifies the specific information that the FBI has

withheld from documents, i.e., names and identifiers, symbols, phone numbers, etc. And where

full documents have been withheld, the Vaughn index in combination with the declaration and

the copies of the representative sample documents that have been filed on the docket in this case

explain why no segregable material could be released. See, e.g., Hardy Decl. ¶¶ 38, 48, 60, 68.

Although the section of the Luczynski declaration labeled “Segregability” contains only a

conclusory assurance that the EOUSA considered the segregability of the requested records and

that no reasonably segregable non-exempt information was withheld, Luczynski Decl. ¶ 31, the

Court finds that the EOUSA has also met its burden of showing with reasonable specificity that

all segregable responsive information has been disclosed to plaintiff. As explained throughout

this Memorandum Opinion, the Vaughn index and supplemental Vaughn index, the descriptions

in the Luczynski declaration of the particular information withheld, and the copies of

representative sample documents that have been filed on the docket together provide sufficient

information about the particular information that was withheld and its ability to be segregated

from non-exempt information.

CONCLUSION

For the abovementioned reasons, the Court will grant in part and deny in part defendants’

motion for summary judgment. The Court will remand for closer review and supplementation of

the basis for the withholding: (1) the representative document found at page number BOEHM-

45
2738 and any documents it represents; (2) documents that the EOUSA has withheld under the

explanation that they are “related to the grand jury”; and (3) information that the EOUSA has

withheld under Exemption 7(D). The Court will also remand the representative document found

at page numbers BOEHM 3853 to 3858, and any documents it represents, to the FBI for the

release to plaintiff of all portions that are being withheld under Exemption 7(F), but not under

Exemptions 6 or 7(C). A separate order will issue.

AMY BERMAN JACKSON
United States District Judge

DATE: June 10, 2013

46