UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
ANTHOINE PLUNKETT, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-0341 (RWR)
)
DEPARTMENT OF JUSTICE, )
)
Defendant. )
________________________________________ )
MEMORANDUM OPINION AND ORDER
In this civil action, plaintiff seeks to compel the Executive Office for United States
Attorneys (“EOUSA”) to disclose “all non-exempt records” responsive to his request brought
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. See Compl. [Dkt. # 1]; Am.
Compl. [Dkt. # 27]. Defendant moves for summary judgment under Rule 56 of the Federal
Rules of Civil Procedure based on its release of records. 1 Upon consideration of the parties’
submissions and the relevant parts of the record, the motion will be granted in part and denied in
part.
1
Plaintiff’s amended complaint, which is substantially the same as the initial complaint, was
deemed filed by Order of December 20, 2011 [Dkt. # 26]. Because the amended complaint
presents additional arguments but no new claims, defendant was given until January 18, 2012, to
file any supplement to its pending motion for summary judgment to address the amended
complaint. Defendant opted not to file a supplement, as was its right. Thus, the plaintiff’s
motion for a writ of mandamus to compel the defendant to file a supplement [Dkt. # 28] will be
denied, and the defendant’s pending summary judgment motion will be treated as one directed at
the amended complaint.
1
BACKGROUND
The relevant facts are as follows. By letter dated May 12, 2008, plaintiff requested from
EOUSA “copies of any and all records . . . in whatever format . . . that makes [sic] reference to
me or relates [sic] to me under my name and/or identifier assigned to my name.” Declaration of
John F. Boseker (“Boseker Decl.”) [Dkt. # 16-5], Ex. A. Plaintiff stated that he was “[m]ore
specifically . . . seeking information generated and/or retained by your agency as a result of the
homicide of ‘Tyree Nathaniel Wimbush’, that occurred on or about July 22, 1999, in the City of
Danville, Virginia.” Id. Plaintiff requested that his “approval” be sought for “any expenses in
excess of $300.00 . . . .” Id. In response to EOUSA’s subsequent acknowledgment letter dated
June 5, 2008, id., Ex. B, plaintiff returned a form EOUSA had included to revise his request “to
try to reduce fees,” stating that he was limiting his request to “[a]ny and all (statements and
investigative) information pertaining to me from January 1st of 1999 up until the present,” and
again specifying that he sought information pertaining to the Wimbush homicide “within this
time frame.” Id., Ex. C (parenthesis in original).
By letter of May 8, 2009, EOUSA purported to release to plaintiff 178 unredacted pages
and 48 redacted pages of information. Id., Ex. H. EOUSA withheld 305 pages in full and
invoked FOIA exemptions 3, 6, 7(C), 7(D), and 7(F), see 5 U.S.C. 552(b), and Privacy Act
exemption (j)(2), see 5 U.S.C. §552a, as the bases for its withholdings. Id., Ex. H. In addition,
EOUSA referred other records that “may or may not be responsive to [plaintiff’s] request” to the
United States Marshals Service and the Bureau of Prisons (“BOP”) for their review and
responses directly to plaintiff. Id. at 2. Plaintiff unsuccessfully appealed EOUSA’s
determination to the Office of Information Policy (“OIP”), which added exemption 5 as a basis
for withholding information. See id., Ex. L.
2
Plaintiff filed this action on February 9, 2011. Thereafter, on June 2, 2011, EOUSA
released to plaintiff an additional 36 pages of information, 35 of which contained redactions
made pursuant to FOIA exemptions 3, 5, 7(C), 7(D), and 7(F). Id., Ex. N [Dkt. # 21-2]. In
preparing a Vaughn index in support of the instant summary judgment motion, see Vaughn v.
Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973), Boseker determined that EOUSA had
miscalculated the initial number of released pages and, accounting also for the additional release
in June 2011, clarified that EOUSA released 170 pages in full and 83 pages in part, and withheld
a total of 1,738 pages in full that includes 885 pages of grand jury records and 707 pages of
“non-responsive/categorically third-party records, (including 160 pages returned from the
BOP).” Boseker Decl. ¶¶ 22-24 (parenthesis in original). All of the responsive records were
located in plaintiff’s criminal case file maintained by the United States Attorney’s Office for the
Western District of Virginia (“USAO/WDVA”) where plaintiff was prosecuted and convicted
“of multiple counts of criminal statutory violations relating to [a] murder for hire perpetrated
upon . . . Mr. Wimbush.” Id. ¶ 26; see Plunkett v. U.S., No. 4:04-cr-70083, No. 4:09-cv-80205,
2011 WL 2199174, at *1 (W.D. Va. June 6, 2011) (identifying plaintiff as “a federal inmate
serving a life sentence for his convictions in connection with his role in a murder for hire
conspiracy . . . .”).
REVIEW STANDARD
Summary judgment may be appropriately granted when “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). Courts draw all reasonable inferences from the evidentiary record
in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
3
“A district court must conduct a de novo review of the record in a FOIA case, and the
agency resisting disclosure bears the burden of persuasion in defending its action.” Milton v.
U.S. Dep’t. of Justice, 783 F. Supp. 2d 55, 57 (D.D.C. 2011) (citing 5 U.S.C. § 552(a)(4)(B)). In
a FOIA case, summary judgment in favor of an agency is warranted where the agency
demonstrates that no material facts are in dispute, that it conducted a search of records in its
custody or control that was reasonably forecast to divulge all relevant information, Weisberg v.
U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984), and that the information found
through the search has either been released to the requestor or is exempt from disclosure. See
Skinner v. U.S. Dept. of Justice, 806 F. Supp. 2d 105, 111 (D.D.C. 2011) (citing Students Against
Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001)).
When, as here, an agency’s search is questioned, the agency is entitled to summary
judgment upon a showing, through declarations that explain in reasonable detail and in a
nonconclusory fashion the scope and method of the search, that it conducted a search likely to
locate all responsive records. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). Without
contrary evidence of bad faith, the agency's amply detailed affidavits are sufficient to
demonstrate compliance with the FOIA. Id. at 127. A search does not have to be exhaustive,
and whether a search is adequate is determined by methods, not results. Weisberg, 745 F .2d at
1485. An agency's failure to locate a specific responsive document will not, on its own, render
an otherwise reasonable search inadequate. See Brown v. FBI, 675 F. Supp. 2d 122, 125–26
(D.D.C. 2009) (citing Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004)) (other citation
omitted).
4
DISCUSSION
Plaintiff’s lengthy opposition to defendant’s motion may be summed up as a challenge to
EOUSA’s claimed exemptions and search for responsive records. See Mem. of P. & A. in Opp’n
to Def.’s Mot. for Partial Summ. J. (“Pl.’s Opp’n”) [Dkt. # 24] at 1 (“Plaintiff opposes summary
judgment on the grounds that the EOUSA has improperly withheld agency records that are non-
exempt, . . . that certain exemptions have been claimed improperly as a matter of law, [and that]
the search performed [was] inadequate.”). EOUSA’s sole evidence in support of summary
judgment is Boseker’s declaration accompanied by exhibits and a Vaughn index.
1. The Search for Records
“A declarant in a FOIA case satisfies the personal knowledge requirement in [Rule
56(c)(4)] if in his declaration, [he] attests to his personal knowledge of the procedures used in
handling [a FOIA ] request and his familiarity with the documents in question.” Barnard v.
Dep’t of Homeland Sec., 531 F. Supp. 2d 131, 138 (D.D.C. 2008) (citations and internal
quotation marks omitted). Although “hearsay in FOIA declarations is often permissible,” id., the
person in charge of the search is “the most appropriate person to provide a comprehensive
affidavit” about the search. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir.1991)
(citing Meeropol v. Meese, 790 F.2d 942, 951 (D.C. Cir. 1986)).
Plaintiff argues that Boseker’s description of the search, Boseker Decl. ¶ 27, is “wholly
inadequate,” Pl.’s Opp’n at 3. His argument has merit. Boseker states that the FOIA contact at
the USAO/WDVA, Jo Brooks, “conducted a systematic search for records” and describes
generally the type of search that may have been performed. Boseker Decl. ¶ 27. Boseker does
not claim to have any personal knowledge about that search and he has not proffered Brooks’
declaration describing her search. There is no evidence describing the filing systems that were
5
actually searched and the search terms that were utilized. Nor is there any evidence establishing
that all files likely to contain responsive records were searched. Viewing these omissions “in the
light most favorable to the requester,” Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir. 1994), a
factual dispute exists on the adequacy of EOUSA’s search. Therefore, defendant’s motion for
summary judgment with regard to the adequacy of the search will be denied.
2. Defendant’s Claimed Exemptions
Exemption 3
FOIA Exemption 3 covers records that are “specifically exempted from disclosure by
statute . . . provided that such statute either “(A) [requires withholding] in such a manner as to
leave no discretion on the issue,” or “(B) establishes particular criteria for withholding or refers
to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3); see Senate of the
Commonwealth of Puerto Rico v. U. S. Dep’t of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987).
The Federal Rules of Criminal Procedure prohibit disclosure of “matters occurring before
[a] grand jury.” Fed. R. Crim. P. 6(e)(2); see In re: Motions of Dow Jones & Co., Inc., 142 F.3d
496, 498-501 (D.C. Cir. 1998). Criminal Rule 6(e) qualifies as a statute under Exemption 3
because it was affirmatively enacted by Congress. See Fund for Constitutional Government v.
National Archives and Records Service, 656 F.2d 856, 867-68 (D.C. Cir. 1981).
The United States Court of Appeals for the District of Columbia Circuit has limited the
grand jury exception to material, which, if disclosed, 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, and the like.” Senate of the Commonwealth of Puerto Rico, 823 F.2d at 582 (quoting SEC
v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc)); see Lopez v. Dep’t of
6
Justice, 393 F.3d 1345, 1349 (D.C. Cir. 2005) (“[a]ll grand jury subpoenas . . . fall within
FOIA’s third exemption”); but see Lopez, at 1351 (“exemption [3] does not include all
preliminary interviews conducted by prosecutors supervising grand jury investigations”).
Defendant applied exemption 3, in conjunction with exemptions 7(C), 7(D) and 7(F), to
885 pages of “documents specifically identified to the grand jury investigation concerning the
murder for hire homicide, including . . . subpoenas and all records obtained from identified
sources in response to said subpoenas . . . as well as transcripts of grand jury witness testimonies,
and identified grand jury exhibits.” Vaughn index (Doc. # 43). The release of the information
would disclose “the scope of the grand jury’s investigation . . ., how the Government developed
its case, and who the Government relied upon to develop the elements of the alleged crimes.”
Boseker Decl. ¶ 31. According to the Vaughn index, the withheld documents are not segregable
because “[a]ny disclosure from within this material would impermissibly reveal the scope and
inner workings of the grand jury investigation.” Defendant properly withheld the grand jury
records under exemption 3.
Exemption 5
Exemption 5 provides that “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” are
exempt from disclosure under the FOIA. 5 U.S.C. § 552(b)(5). The exemption is intended to
protect the decision-making processes of government agencies and to encourage open discussion
of legal and policy issues. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. U.S. Dep’t of Justice,
503 F. Supp. 2d 373, 380 (D.D.C. 2007) (citing Leadership Conf. on Civil Rights v. Gonzales,
404 F. Supp. 2d 246, 253 (D.D.C. 2005)). For a document to be exempt under this provision, its
source must be a government agency . . . and it must fall within the ambit of documents
7
“ ‘normally privileged in the civil discovery context.’ ” Id. (quoting Leadership Conf., 404 F.
Supp. 2d at 253 (other citations omitted). Those privileges include attorney-client privilege,
work product, and the deliberative process privilege. Id. (citing Dep’t of Interior v. Klamath
Water Users Protective Ass’n, 532 U.S. 1, 8 (2001)). A document containing “facts ‘integral to
the legal analyses and discussions of investigation strategy’ ” qualifies as attorney work product,
Martin v. Dep’t of Justice, 488 F.3d 446, 455-56 (D.C. Cir. 2007) (quoting Judicial Watch, Inc.
v. DOJ, 432 F.3d 366, 371 (D.C. Cir. 2005)), and a document protected by the work product
privilege “is fully protected,” thereby requiring no segregability analysis. Id.
Defendant applied exemption 5, in conjunction with exemptions 6 and 7(C), to a 27-page
jury questionnaire summary prepared by an assistant United States attorney for a trial scheduled
on August 15, 2005. Vaughn index (Doc. # 33). Boseker states that the document was withheld
in full because it constitutes attorney work product inasmuch as it “reflects such matters as trial
preparation, trial strategy, interpretations, and personal evaluations and opinions pertinent to
[plaintiff’s] criminal case specifically in the matter of juror selection.” Boseker Decl. ¶ 34.
Boseker also states that “[t]he records were prepared by or at the request or direction of an
attorney, and made in anticipation of or during litigation.” Id. Defendant properly withheld the
jury questionnaire summary in its entirety as attorney work product.
Exemptions 6 and 7(C)
Defendant withheld third-party identifying information and third-party records under the
FOIA’s personal privacy provisions, namely, exemptions 6 and 7(C). Boseker Decl. ¶¶ 36-38,
41, 45-46. Exemption 6 protects information about individuals in “personnel and medical files
and similar files the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy.” 5 U.S.C. § 552 (b)(6). All information that “applies to a particular individual”
8
would qualify for consideration under this exemption. U.S. Dep’t of State v. Washington Post
Co., 456 U.S. 595, 602 (1982); accord New York Times Co. v. NASA, 920 F.2d 1002, 1005 (D.C.
Cir. 1990) (en banc); see Akin, Gump, 503 F. Supp. 2d at 381 (“Congress' primary purpose in
drafting Exemption 6 was to provide for confidentiality of personal matters.”) (citation and
internal quotation marks omitted). Exemption 7(C) protects from disclosure information
compiled for law enforcement purposes to the extent that disclosure “could reasonably be
expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
It cannot be reasonably disputed that the requested records concerning plaintiff’s criminal
prosecution are law enforcement files subject to review under exemption 7. See Blackwell v.
FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (finding law enforcement assertion “especially convincing
[where] [requester] explicitly sought records related to his own criminal prosecution.”). The
focus therefore will be on whether defendant properly withheld information under the
“somewhat broader” standard of exemption 7(C). Beck v. Dep’t of Justice, 997 F.2d 1489, 1491
(D.C. Cir. 1993) (citation omitted); see Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C.
Cir. 2011) (finding “no need to consider Exemption 6 separately [where] all information that
would fall within the scope of Exemption 6 would also be immune from disclosure under
Exemption 7(C)”).
“As a result of Exemption 7(C), FOIA ordinarily does not require disclosure of law
enforcement documents (or portions thereof) that contain private information.” Blackwell, 646
F.3d 37 at 41 (citing cases). This is because the disclosure of information about an individual's
involvement in law enforcement proceedings constitutes an unwarranted invasion of personal
privacy under exemption 7(C). See Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990)
(quoting Branch v. FBI, 658 F. Supp. 204, 209 (D.D.C. 1987)) (“‘the mention of an individual’s
9
name in a law enforcement file will engender comment and speculation and carries a
stigmatizing connotation’”); accord Schrecker v. United States Dep't of Justice, 349 F.3d 657,
661 (D.C. Cir. 2003) (citing cases that have "consistently supported nondisclosure of names or
other information identifying [third-party] individuals appearing in law enforcement records,
including investigators, suspects, witnesses, and informants.”). Thus, third-party identifying
information is “categorically exempt” from disclosure under exemption 7(C) in the absence of an
overriding public interest in its disclosure. Nation Magazine, Washington Bureau v. United
States Customs Service, 71 F.3d 885, 896 (D.C. Cir. 1995).
The United States Supreme Court has broadly interpreted the “personal privacy interest
that Congress intended Exemption 7(C) to protect.” United States Dep’t of Justice v. Reporters
Committee for Freedom of the Press, 489 U.S. 749, 762 (1989); accord Nat’l Archives and
Records Admin. v. Favish, 541 U.S. 157, 165 (2004) (“[T]he concept of personal privacy under
Exemption 7(C) is not some limited or ‘cramped notion’. . . .”) (quoting Reporters Committee,
489 U.S. at 763). Such privacy interests may be invaded, then, only when a requester shows that
the information is necessary to “shed any light on the [unlawful] conduct of any Government
agency or official.” Reporters Committee, 489 U.S. at 772-73; accord Nation Magazine,
Washington Bureau, 71 F.3d at 887-88; SafeCard Services, Inc., v. SEC, 926 F.2d 1197, 1206
(D.C. Cir. 1991).
Plaintiff “must 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 that “the information is
likely to advance that interest.” Favish, 541 U.S. at 172. Such a showing requires “more than a
bare suspicion” of official misconduct; “the requester must produce evidence that would warrant
a belief by a reasonable person that the alleged Government impropriety might have occurred.”
10
Id. at 174. For it is “[o]nly when [such evidence is] produced [that] there [will] exist a
counterweight on the FOIA scale for the court to balance against the cognizable privacy interests
in the requested records.” Id. at 174-75. Plaintiff has not argued for disclosure of the withheld
material based on an overriding public interest. 2 Rather, he argues for disclosure under the
public domain doctrine. Pl.’s Opp’n at 14.
Under the public domain doctrine, information otherwise exempt from disclosure “lose [s
its] protective cloak once disclosed and preserved in a permanent public record.” Cottone v.
Reno, 193 F.3d 550, 554 (D.C. Cir. 1999). Plaintiff has the initial burden of “pointing to specific
information in the public domain that appears to duplicate that being withheld.” Callaway v.
U.S. Dep’t of Treasury, 824 F. Supp. 2d. 153, 164 (D.D.C. 2011) (quoting Afshar v. Dep’t of
State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)).
Plaintiff invites a comparison between a police report defendant allegedly released on
May 8, 2009, and the same report it allegedly released on June 2, 2011, containing different
redactions. Pl.’s Opp’n at 15. Plaintiff has not identified the specific information he claims
defendant withheld that is in the public domain and he overlooks the fact that the second release
in June 2011 was of pages additional to -- not duplicates of -- the earlier released pages.
Boseker Decl. ¶¶ 22-23. Plaintiff also points to an online newspaper article that he claims
contains a statement made by a Reverend Larry Hill that also appears in the foregoing redacted
police report. Pl.’s Opp’n at 15 (citing Ex. BB). But the public domain doctrine applies only to
2
In his opposition to defendant’s application of exemption 7(D), an exemption that has no
balancing component, plaintiff claims that defendant “has engaged in an illegal cover-up, being
that testimony was illicited [sic] from various confidential informants during [his] trial without
the[ir] identity being disclosed to the jury.” Pl.’s Opp’n at 18. Even if stated in response to
defendant’s exemption 7(C) claim, those facts do not amount to “an illegal cover-up” and, thus,
would not trigger the exemption 7(C) balancing requirement.
11
information that has been “officially acknowledg[ed].” Wolf v. CIA, 473 F.3d 370, 378 (D.C.
Cir. 2007). As the D.C. Circuit explained:
an official acknowledgment must meet three criteria: First, the information
requested must be as specific as the information previously released. Second, the
information requested must match the information previously disclosed. . . .
Third, . . . the information requested must already have been made public through
an official and documented disclosure. . . . Thus, the fact that information exists
in some form in the public domain does not necessarily mean that official
disclosure will not cause harm cognizable under a FOIA exemption.
Id. (citations omitted). Plaintiff makes similar claims about statements supposedly made by
Joyce Stone and claims that “[s]he also testified publicly at trial to this information.” Pl.’s Opp’n
at 16. However, plaintiff has not provided a transcript of Stone’s testimony, see Callaway, 824
F. Supp. 2d at 164, and he has not shown that any statements she may have made to a newspaper
reporter were officially acknowledged. Accordingly, plaintiff is not entitled to release of the
otherwise exempt information under the public domain doctrine.
Plaintiff also argues that defendant failed to first ascertain the “life status” of the third-
party individuals. Pl.’s Opp’n at 16. He claims particularly that “[t]he statements of Michael
Wimbush and Jeffrin Nolan should be released because [they] are deceased . . . .” Id. Plaintiff
has not supplied the proof of their deaths that would be expected but, even if they are deceased,
their privacy interests are not per se extinguished. Accuracy in Media, Inc. v. Nat’l Park Serv.,
194 F.3d 120, 123 (D.C. Cir. 1999) (“[O]ur circuit has squarely rejected the proposition that
FOIA's protection of personal privacy ends upon the death of the individual depicted.”)
(examining Campbell v. United States Dep't of Justice, 164 F.3d 20 (D.C. Cir. 1998)). Rather,
“[t]he fact of death . . . while not requiring the release of information, is a relevant factor to be
taken into account in the balancing decision whether to release information.” Schrecker, 349
F.3d at 661 (citations and internal quotation marks omitted). Because plaintiff has not asserted a
12
public interest to trigger the balancing requirement, his so-called life status “argument has no
merit.” Piper v. U.S. Dep’t of Justice, 428 F. Supp. 2d 1, 3-4 (D.D.C. 2006).
Exemption 7(D)
FOIA Exemption 7(D) protects from disclosure records that “could reasonably be
expected to disclose the identity of a confidential source. . . .” 5 U.S.C. § 552(b)(7)(D). “[I]n
the case of a record or information compiled by criminal law enforcement authority in the course
of a criminal investigation,” the agency may also withhold “information furnished by a
confidential source.” Id. In addition to showing that the information was compiled for a law
enforcement purpose, the agency must also show that the informant conveyed the information
under either an express or implied promise of confidentiality and that disclosure could
reasonably be expected to disclose the source’s identity. United States Dep’t of Justice v.
Landano, 508 U.S. 165, 171-72 (1993).
An express assurance of confidentiality is shown by an agency’s proffer of “probative
evidence that the source did in fact receive an express grant of confidentiality.” Campbell, 164
F.3d at 34 (quoting Davin v. United States Dep’t of Justice, 60 F.3d 1043, 1061 (3d Cir. 1995)).
Such evidence may take many forms, such as notations on the face of the withheld document, an
official’s personal knowledge about the source, a statement from the source, or documents
discussing practices or policies for dealing with the source at issue or similarly situated sources.
Id. The government is not entitled to a presumption of confidentiality simply because “the
source provide[d] information . . . in the course of a criminal investigation.” Landano, 508 U.S.
at 181. Thus, when the agency claims an implied assurance of confidentiality, the proper inquiry
is “whether the particular source spoke with an understanding that the communication would
remain confidential.” Id. at 172. An implied assurance of confidentiality may be inferred from
13
evidence showing the circumstances surrounding the imparting of the information, including the
nature of the criminal investigation and the informant’s relationship to the target. Id; Computer
Professionals for Social Responsibility v. U.S. Secret Service, 72 F.3d 897, 905-06 (D.C. Cir.
1996).
Defendant applied exemption 7(D), in conjunction with exemptions 7(C) and 7(F), to
portions of statements by “eyewitnesses to either murder, itself, or persons cooperating in
providing evidence as to suspects . . . .” Vaughn index (Doc. # 35); id (Doc. # 41). In addition,
defendant asserts that “in at least one instance, there is reference to a confidential informant
providing information.” Id. (Doc. # 35). Boseker states that where an express assurance of
confidentiality is not shown, confidentiality may be “reasonably inferred [because] [t]he
witnesses provided both the identities of the conspirators [to a murder for hire plot] and [the]
circumstances surrounding the perpetration of the murder.” Boseker Decl. ¶ 52. Defendant has
not supplied “probative evidence that [a] source did in fact receive an express grant of
confidentiality,” Callaway v. U.S. Dep’t of Treasury, 577 F. Supp. 2d 1, 3 (D.D.C. 2008)
(internal quotation marks and citation omitted), but it has provided sufficient information about
the investigation, the criminal activity, and the witnesses’ relationship to the targets to infer an
implied grant of confidentiality. See Mays v. Drug Enforcement Admin., 234 F.3d 1324, 1329-31
(D.C. Cir. 2000) (discussing “ ‘generic circumstances in which an implied assurance of
confidentiality fairly can be inferred’ ”) (quoting Landano, 508 U.S. at 179). In Mays, there was
“no doubt that a source of information about a conspiracy to distribute cocaine typically faces a
sufficient threat of retaliation that the information he provides should be treated as implicitly
confidential.” Id. at 1331. Surely, the same presumption would apply to a witness to a murder
14
for hire conspiracy. Defendant properly applied exemption 7(D) to Documents 35 and 41
described in the Vaughn index.
Exemption 7(F)
Exemption 7(F) of the FOIA protects from mandatory 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). In general, this
exemption has 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. See Durham v. United States Dep’t of Justice, 829 F. Supp. 428, 434
(D.D.C. 1993); Public Employees for Environmental Responsibility (Peer), Rocky Mountain
Chapter v. U.S. E.P.A., 978 F. Supp. 955, 961 (D. Colo. 1997) (citing cases). In reviewing
claims under exemption 7(F), courts have inquired whether there is some nexus between
disclosure and possible harm and whether the deletions were narrowly made to avert the
possibility of such harm. Albuquerque Pub. Co. v. U.S. Dep’t. of Justice, 726 F. Supp. 851, 858
(D.D.C. 1989).
Defendant applied exemption 7(F) in conjunction with exemptions 5, 7(C) and 7(D), to
portions of Documents 35 and 41. Boseker Decl. ¶¶ 55-56. As with the previous findings,
defendant’s application of this exemption based on a reasonable fear for the safety of “[c]ertain
individuals, confidential informants, and witnesses” connected to the murder for hire plot was
proper. See Adionser v. Dep’t of Justice, 811 F. Supp. 2d 284, 301 (D.D.C. 2011) (“DEA
properly applied Exemption 7(F) to protect the physical safety of special agents, law
enforcement officers, government employees, and confidential sources of information . . . .”)
(citations omitted).
15
Plaintiff challenges defendant’s “ ‘large swaths’ ” of redactions made to a number of
released documents under exemptions 7(C), 7(D), and 7(F). Pl’s. Opp’n at 13, 17, 19. But he
overlooks the fact that in such instances, defendant applied those exemptions in tandem and that
exemption 7(D) in particular permits withholding not only third-party identifying information of
confidential sources but also, under the circumstances of this case, the information they supplied.
In addition, plaintiff overlooks Boseker’s explanation that “[w]here a record was identified to a
third party individual’s relationship to the subject murder, . . . it was indexed and exemptions
applied.” Boseker Decl. ¶ 24 n.2. Because, as is stated above, “FOIA ordinarily does not require
disclosure of law enforcement documents (or portions thereof) that contain private information,”
Blackwell, 646 F.3d at 41, no genuine dispute is shown merely because a released record was
heavily redacted. Plaintiff suggests that the documents be reviewed in camera. Because
defendant’s Vaughn index and plaintiff’s own exhibits of the challenged records allow for
meaningful de novo review of the claimed exemptions, an in camera review is not warranted.
See Graham v. Mukasey, 247 F.R.D. 205, 297 (D.D.C. 2008) (citing Weissman v. Central
Intelligence Agency, 565 F.2d 692, 698 (D.C. Cir. 1977)) (stating, in a FOIA case, that “only
where the record is vague or the agency claims too sweeping or suggestive of bad faith” that an
in camera examination is warranted.)
3. Record Segregability
An agency must disclose “[a]ny reasonably segregable portion” of an otherwise exempt
record. 5 U.S.C. § 552(b). While an agency is presumed to have complied with its obligation to
disclose non-exempt portions of the record, a “district court must make specific findings of
segregability regarding the documents to be withheld.” Sussman v. U.S. Marshals Serv., 494
F.3d 1106, 1116 (D.C. Cir. 2007). When, as here, records are withheld in their entirety, a
16
determination must be made as to whether any portion of those records could have been
segregated and released. Trans-Pacific Policing Agreement v. United States Customs Service,
177 F.3d 1022, 1027-28 (D.C. Cir. 1999). To justify the withholding of entire records, an
agency must demonstrate that the “exempt and nonexempt information are ‘inextricably
intertwined,’ such that the excision of exempt information would impose significant costs on the
agency and produce an edited document with little informational value." Mays, 234 F.3d at 1327
(quoting Neufeld v. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981)) (other citation and internal
quotation marks omitted).
Boseker states that “each document was evaluated to determine if any information could
be segregated and released” and that the documents “withheld in their entirety contained no
meaningful [releasable] portions . . . .” Boseker Decl. ¶ 57. The Vaughn index supports
Boseker’s statement, as does the case law with respect to the complete withholding of the grand
jury records, attorney work product, and third-party records. Defendant has demonstrated that it
disclosed all reasonably segregable records that are currently at issue.
4. Record Referrals
Plaintiff takes issue with EOUSA’s referral of certain records to the Marshals Service and
BOP for review and a response directly to plaintiff. See Pl.’s Opp’n at 20-22. Because EOUSA
is ultimately responsible for processing responsive records in its custody and control at the time
of the FOIA request, a referral of records could constitute an improper withholding if the “net
effect [of the referral procedure] is significantly to impair the requester's ability to obtain the
records or significantly to increase the amount of time he must wait to obtain them.” Peralta v.
U.S. Attorney’s Office, 136 F.3d 169, 175 (D.C. Cir. 1998) (quoting McGehee v. CIA, 697 F.2d
1095, 1110 (D.C. Cir. 1983)) (internal quotation marks omitted) (brackets in original).
17
As background information, Boseker refers to an OIP letter advising plaintiff that some
of the records referred to BOP were returned to EOUSA but Boseker does not otherwise address
the referrals. Therefore, defendant’s motion for summary judgment with regard to the referred
records will be denied.
5. Unprocessed Records
Defendant seems to question whether it interpreted plaintiff’s revised request too
narrowly as seeking only that information that directly relates to “the homicide of Tyree
Nathaniel Wimbush.” Boseker Decl. ¶ 22 n.1. It then invites plaintiff to indicate whether he
“believes that [seemingly related] material is, in fact, within the scope of his request” and if so,
defendant “would ask leave of the court to process the materials in accords [sic] with the FOIA.”
Id. Plaintiff responds that he “was seeking [such] records and would still like to receive [them].”
Pl.’s Opp’n at 7. Therefore, defendant will be granted leave to process the additional records. 3
6. Agency Bad Faith
Plaintiff argues throughout his opposition that defendant has acted in bad faith, but he
does not make clear in what material way the defendant acted in bad faith. See Pl.’s Opp’n at 4-
7; 26-31. To sustain this claim, plaintiff “must point to evidence sufficient to put the Agency's
[presumption of] good faith into doubt.” Ground Saucer Watch, Inc. v. C.I.A., 692 F.2d 770, 771
3
Defendant has indicated that plaintiff has not yet expended the $280 fee he has paid but it notes
that any further processing of the request could increase plaintiff’s costs. Boseker Decl. n.1.
Plaintiff is advised that defendant has no obligation to disclose records absent the plaintiff’s
payment of any assessed fee. Furthermore, the payment or waiver of an assessed fee or an
administrative appeal from the denial of a fee waiver request is a condition precedent to
obtaining judicial review. See Smith v. Fed. Bureau of Prisons, 517 F. Supp. 2d 451, 455
(D.D.C. 2007) (citations omitted).
18
(D.C. Cir. 1981). “Purely speculative claims” of bad faith will not suffice to overcome the
presumption. Id.
To the extent that plaintiff’s bad faith argument is based on defendant’s search for what it
determined to be records responsive to plaintiff’s narrowed request, see e.g., Pl.’s Opp’n at 4-5,
defendant reasonably interpreted the narrowed request for “[a]ny and all (statements and
investigative) information pertaining to me from January 1st of 1999 up until the present” as
excluding “documents connected to what appears to be a narcotics-related incident and
laboratory reports arising from that incident, which does not appear to connect with the
homicide.” Boseker Decl. n.1.
To the extent that plaintiff’s argument is based on defendant’s initial handling of his
request, see, e.g., Pl.’s Opp’n at 5-7, “initial delays in responding to a FOIA request are rarely, if
ever, grounds for discrediting later affidavits by the agency.” Iturralde v. Comptroller of
Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citations omitted); see Perry, 684 F.2d at 125
(“[H]owever fitful or delayed the release of information under the FOIA may be, once all
requested records are surrendered, federal courts have no further statutory function to perform.”);
accord Boyd v. Criminal Div. of U.S. Dept. of Justice, 475 F.3d 381, 388 (D.C. Cir. 2007)
(“[B]ecause the report was located in the work file and subsequently disclosed, the issue is moot
for purposes of this FOIA action.”) (citing Perry); see also Ground Saucer, 692 F.2d at 772
(“[T]he institution of a de novo search significantly undercuts appellant's argument that earlier
noncooperation by the CIA raises a substantial question of current bad faith on the part of the
Agency. Indeed, if the release of previously withheld materials were held to constitute evidence
of present ‘bad faith,’ similar evidence would exist in every FOIA case involving additional
releases of documents after the filing of suit.”) (citation omitted).
19
Finally, to the extent that plaintiff’s argument is based on his disagreement with
defendant’s claimed exemptions and his unsubstantiated suggestions that defendant has doctored
its proffered exhibits, see, e.g., Pl.’s Opp’n at 5-9, he has failed to offer any evidence to rebut the
"presumption of good faith” accorded agency declarations. Long v. U.S. Dep’t of Justice, 450 F.
Supp. 2d 42, 54 (D.D.C. 2006) (citation and quotation omitted). In sum, plaintiff has failed to
demonstrate that defendant has in any way acted in bad faith.
7. The Privacy Act Exemption
Plaintiff argues that defendant “improperly invoked” exemption (j)(2) of the Privacy
Act. 4 Pl.’s Opp’n at 8-9. Given that subsection (j)(2) explicitly authorizes law enforcement
agencies to exempt from mandatory disclosure record systems pertaining to, inter alia, “the
activities of prosecutors,” 5 U.S.C. § 552a(j)(2), plaintiff is simply wrong. See 28 C.F.R. §
16.81(a) (exempting the United States Attorney’s Criminal Case Files). In any event, the
Privacy Act does not bar disclosure of documents that are otherwise required to be disclosed
under the FOIA, 5 U.S.C. § 552a(b)(2); see Greentree v. United States Customs Serv., 674 F.2d
74, 79 (D.C. Cir. 1982), and defendant properly reviewed and released responsive records under
the FOIA.
4
Inexplicably, plaintiff sets forth the language of the Privacy Act’s accounting requirements, 5
U.S.C. § 552a(c)(1). Pl.’s Opp’n at 8. Nothing in the complaint’s allegations suggests that
plaintiff is suing under that provision of the Privacy Act. See Sussman v. U.S. Marshals Serv.,
494 F.3d 1106, 1124 (D.C. Cir. 2007) (“The core elements of [an accounting] claim are (1)
failure by [agency] to maintain an accurate accounting of disclosures, and (2) a resultant adverse
effect on [the subject of the disclosure].”) (citation omitted).
20
CONCLUSION AND ORDER
For the foregoing reasons, defendant’s motion for summary judgment will be granted as
to its claimed exemptions and the segregability of the processed records, and will be denied in all
other respects without prejudice. Accordingly, it is hereby
ORDERED that defendant’s motion for summary judgment [Dkt. # 16] is GRANTED in
part and DENIED in part without prejudice; it is further
ORDERED that by March 22, 2013, defendant shall (1) process the remaining responsive
records and release any non-exempt records to plaintiff, and (2) file a properly supported
summary judgment motion that addresses those records, the referred records, and the actual
search for responsive records; it is further
ORDERED that plaintiff’s motion for counsel [Dkt. # 22], motion for an in camera
inspection [Dkt. # 23], and motion for a writ of mandamus [Dkt. # 28] are DENIED.
_________/s/_____________
RICHARD W. ROBERTS
DATE: February 20, 2013 United States District Judge
21
Plunkett v. Department of Justice
Court: District Court, District of Columbia
Date filed: 2013-02-20
Citations: 924 F. Supp. 2d 289
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