Island Film, S.A. v. Department of the Treasury

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

______________________________
)
ISLAND FILM, S.A., )
)
Plaintiff, )
)
v. ) Civil Action No. 08-286 (RWR)
)
DEPARTMENT OF THE TREASURY, )
)
Defendant. )
______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Island Film, S.A., brings this action against the

Department of the Treasury, alleging a violation of the Freedom

of Information Act (“FOIA”), 5 U.S.C. § 552, arising out of

Island Film’s request for records relating to the Office of

Foreign Assets Control (“OFAC”) blocking Island Film from

receiving $30,000 in Cuba. The parties have filed cross-motions

for summary judgment. Although the record shows that Treasury

fulfilled its obligations with respect to many of the documents

that it withheld or redacted, Treasury’s Vaughn1 index and

supporting affidavit are not sufficient to justify withholding

certain correspondence from a purported confidential source or

screen printouts from various databases. Nor are Treasury’s

1
In Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973), the
D.C. Circuit held that an agency must provide an “itemized
explanation” for its withholding documents requested under the
FOIA. A chart setting forth such specific justifications is
commonly termed a Vaughn index.
 - 2 -

justifications for withholding case tracking numbers supported by

current law. Therefore, Island Film’s motion for summary

judgment will be denied in part, Treasury’s motion for summary

judgment will be granted in part and denied in part, and Treasury

will be ordered to supplement its filings.

BACKGROUND

Island Film, S.A. is a company located in Havana, Cuba. The

company submitted a FOIA request to OFAC regarding a $30,000 wire

transfer from Australia to Island Film that OFAC blocked while

the transaction was being processed by a bank in New York. OFAC

began its search for records responsive to Island Film’s FOIA

request, but did not timely disclose any documents before Island

Film filed this law suit.2

While processing Island Film’s FOIA request, Treasury

determined that several records responsive to Island Film’s

request were protected from disclosure under various FOIA

exemptions. After this suit was filed, Treasury produced two

sets of responsive materials, parts of which were redacted.

Treasury additionally provided Island Film with a Vaughn index

purporting to identify each segment of information withheld and

2
Because Island Film refused to pay the fees associated
with its FOIA request, the parties’ cross motions for summary
judgment were denied without prejudice pending Island Film’s
payment or commitment to pay the assessed fees. The motions were
ultimately reinstated after Island Film agreed to pay the fees
associated with its FOIA request.
 - 3 -

also to justify its non-disclosure, as well as an affidavit

supporting the index’s justifications.

Having concluded that it had produced all information to

which Island Film was entitled, Treasury filed a motion for

summary judgment arguing that it had fulfilled its obligations

under FOIA, and that it properly withheld certain information and

records responsive to Island Film’s FOIA request under FOIA

exemptions 2, 4, 5, 6, 7(C), 7(D), and 7(E). Treasury argued

that the records sought by Island Film were exempt from

disclosure because they were used solely for internal purposes,

contained confidential commercial information, would not be

subject to disclosure in a civil discovery context, contained

personal identifying information about low-level government

employees and third parties, were communications with a

confidential source, and related to the sources of law

enforcement investigations. In particular, the records that

Treasury asserted were exempt for disclosure under FOIA

exemptions 7(D) and 7(E) consisted of financial transactional

details submitted to OFAC by a purported confidential source and

screen printouts of various databases used by Treasury during its

investigations, respectively.

Island Film in turn cross-moved for summary judgment,

arguing that Treasury’s Vaughn declaration was inadequate and

required more specificity, particularly to allow Island Film to
 - 4 -

determine whether any portions of Treasury’s claimed exempt

records were segregable.

DISCUSSION

Summary judgment is appropriate when there exists no genuine

issue as to any material fact and the moving party is entitled to

a judgment as a matter of law. Fed. R. Civ. P. 56(a); see also

Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). The burden

falls on the moving party to provide a sufficient factual record

that demonstrates the absence of a genuine issue of material

fact. See Beard v. Banks, 548 U.S. 521, 529 (2006). A court

must draw all reasonable inferences from the evidentiary record

in favor of the non-moving party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). In a FOIA suit, an agency is

entitled to summary judgment if it demonstrates that no material

facts are in dispute and that all information that falls within

the class requested either has been produced, is unidentifiable,

or is exempt from disclosure. Students Against Genocide v. Dep’t

of State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisberg v. U.S.

Dep’t of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). 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. 5 U.S.C. § 552(a)(4)(B); see

also Long v. U.S. Dep’t of Justice, 450 F. Supp. 2d 42, 53

(D.D.C. 2006).
 - 5 -

I. ADEQUACY OF SEARCH

FOIA requires that government agencies make good faith

efforts to conduct reasonable searches for all records that are

responsive to FOIA requests. Baker & Hostetler LLP v. U.S. Dep’t

of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006). What

constitutes a reasonable search will vary from case to case,

Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990), but

an agency must construe the scope of a request liberally. Nation

Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890

(D.C. Cir. 1995). An agency must demonstrate that its good faith

search effort used “‘methods which can be reasonably expected to

produce the information requested.’” Baker & Hostetler LLP, 473

F.3d at 318 (quoting Nation Magazine, 71 F.3d at 890). A

search’s adequacy is not determined by its results, but by the

reasonableness of the method, Casillas v. U.S. Dep’t of Justice,

672 F. Supp. 2d 45, 48 (D.D.C. 2009), since “particular documents

may have been accidentally lost or destroyed, or a reasonable and

thorough search may have missed them.” Iturralde v. Comptroller

of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). An agency is

entitled to use detailed non-conclusory affidavits or

declarations that are submitted in good faith to show that the

search it conducted in response to a FOIA request is adequate.

Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551-52 (D.C.

Cir. 1994) (stating that the affidavits or declarations must
 - 6 -

describe “what records were searched, by whom, and through what

process”). Agency affidavits cannot be rebutted with mere

speculation about the existence of additional responsive

documents. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201

(D.C. Cir. 1991).

Treasury has provided evidence that it conducted an adequate

search. The declaration of Virginia Canter, who has supervisory

responsibility for processing OFAC’s FOIA requests, identifies

the six agency divisions to which search requests were sent, a

description of what responsibilities each of the divisions had

that made a search of its files reasonably likely to produce

results responsive to Island Film’s request, and search terms

used. (Def.’s Mem., Second Decl. of Virginia R. Canter (“Canter

Decl.”) ¶¶ 1, 7, 27-31.) Island Film has not rebutted Canter’s

declaration on this issue, nor has it otherwise challenged the

search’s adequacy. Thus, Treasury’s search was adequate.

II. WITHHOLDINGS

The FOIA requires agencies to comply with requests to make

their records available to the public, unless information is

exempted by clear statutory language. 5 U.S.C. §§ 552(a), (b);

Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir.

1996). Although there is a “strong presumption in favor of

disclosure,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173

(1991), there are nine exemptions to disclosure set forth in 5
 - 7 -

U.S.C. § 552(b). These exemptions are to be construed as

narrowly as possible to maximize access to agency information,

which is one of the overall purposes of the FOIA. Vaughn v.

Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973).

Because the party requesting disclosure cannot know the

precise contents of the documents withheld, it is at a

disadvantage to claim misapplication of an exemption, and a

factual dispute may arise regarding whether the documents

actually fit within the cited exemptions. Id. at 823-24. To

provide an effective opportunity for the requesting party to

challenge the applicability of an exemption and for the court to

assess the exemption’s validity, the agency must explain the

specific reason for nondisclosure. Id. at 826; see also Oglesby,

79 F.3d at 1176 (“The description and explanation the agency

offers should reveal as much detail as possible as to the nature

of the document, without actually disclosing information that

deserves protection.”). Conclusory statements and generalized

claims of exemption are insufficient to justify withholding.

Vaughn, 484 F.2d at 826; see also Mead Data Cent., Inc. v. U.S.

Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)

(noting that “the burden which the FOIA specifically places on

the Government to show that the information withheld is exempt

from disclosure cannot be satisfied by the sweeping and

conclusory citation of an exemption”) (footnote omitted).
 - 8 -

However, the “materials provided by the agency may take any form

so long as they give the reviewing court a reasonable basis to

evaluate the claim of privilege.” Delaney, Migdail & Young,

Chartered v. IRS, 826 F.2d 124, 128 (D.C. Cir. 1987). If the

agency affidavits and Vaughn index “‘contain reasonable

specificity of detail rather than mere conclusory statements,’”

then a plaintiff must point either to contradictory evidence in

the record or provide independent evidence of agency bad faith to

demonstrate that the agency improperly invoked an exemption.

Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (quoting

Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994)).3

A. Exemption 2

Treasury redacted internal administrative case tracking

numbers from documents that it disclosed. (Def.’s Mem. at 14.)

An agency is not required to disclose records “related solely to

the internal personnel rules and practices of an agency[.]” 5

3
Island Film argues that Treasury produced certain
documents to which the government should not have had access,
giving the “appearance that the government ‘hacked’” the files.
(Pl.’s Opp’n to Def.’s Mot. for Summ. J. & Pl.’s Cross-Mot. for
Summ. J. at 4.) However, Treasury has provided evidence that
Island Film’s counsel faxed some of these documents to OFAC and
that an informant sent the remainder of the documents to OFAC.
(See Def.’s Reply to Pl.’s Opp’n to Def.’s Mot. for Summ. J. &
Def.’s Opp’n to Pl.’s Cross-Mot. for Summ. J., Decl. of John
Battle ¶¶ 7, 9.) Thus, Island Film’s mere allegation of agency
wrongdoing is not sufficient to demonstrate agency bad faith.
See Hoch v. CIA, 593 F. Supp. 675, 680 (D.D.C. 1984) (noting that
the sufficiency of the agency’s affidavits is not undermined by a
mere allegation of agency wrongdoing).
 - 9 -

U.S.C. § 552(b)(2). Justifying the redactions, Treasury relied

on Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992), in

which the D.C. Circuit distinguished between two categories of

information subject to Exemption 2: “Low 2” information

consisting of human resources and employee relations records and

“High 2” information consisting of material the disclosure of

which would risk circumvention of the law. Treasury argued that

because an unauthorized entrant into an OFAC file room or an

unauthorized user of an OFAC database could use the tracking

numbers to gain access to information relating to law enforcement

or commercial records, it properly withheld the case tracking

numbers as “high 2.” (Canter Decl. ¶ 44.) After the parties

briefed the instant motions, the Supreme Court held that

Exemption 2 shields only those records relating to employee

relations and human resources issues, rejecting entirely the

“high 2” category applied by the D.C. Circuit and other circuits.

Milner v. Dep’t of the Navy, 131 S. Ct. 1259, 1265 (2011) (“Our

construction of the statutory language simply makes clear that

Low 2 is all of 2 (and that High 2 is not 2 at all . . .).”) To

afford Treasury the opportunity to disclose the case tracking

numbers, or to justify withholding them under a different

exemption, the parties’ cross-motions for summary judgment will

be denied without prejudice with respect to Exemption 2.
 - 10 -

B. Exemption 4

Treasury seeks to withhold materials related to applications

for licenses to authorize activity otherwise prohibited by the

sanctions regulations OFAC administers, responses to

administrative subpoenas, and data related to blocked assets,

property subject to sanctions prohibitions.4 (Def.’s Mem. at 15-

22.) An agency is not required to disclose “commercial or

financial information obtained from a person and privileged or

confidential[.]” 5 U.S.C. § 552(b)(4). Commercial information

is not confined merely “to records that actually reveal basic

commercial operations, such as sales statistics, profits and

losses, and inventories, or relate to the income-producing

aspects of a business.” Public Citizen Health Research Group v.

FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983). Rather, courts accord

the terms “commercial” and “financial” their “ordinary meanings,”

which include not only economic data relating to business

entities but also personal financial information. Id.; see also

Washington Post Co. v. U.S. Dep’t of Health and Human Servs., 690

F.2d 252, 266 (D.C. Cir. 1982). Information is confidential if

“its disclosure is likely either ‘(1) to impair the Government’s

4
Treasury is no longer seeking to withhold under Exemption
4 printouts from a commercial database, since it invited
objections to the release of those documents but received no
response from the operator of the database. (Def.’s Reply to
Pl.’s Opp’n to Def.’s Mot. for Summ. J. and Def.’s Opp’n to Pl.’s
Cross-Mot. for Summ. J. at 5 n.2.)
 - 11 -

ability to obtain necessary information in the future; or (2) to

cause substantial harm to the competitive position of the person

from whom the information was obtained.’” Public Citizen Health

Research Group v. FDA, 185 F.3d 898, 903 (D.C. Cir. 1999)

(quoting Nat’l Parks and Conservation Ass’n v. Morton, 498 F.2d

765, 770 (D.C. Cir. 1974)).

OFAC issues licenses that authorize either a particular

transaction or a category of activity that would otherwise be

prohibited by sanctions regulations. (Canter Decl. ¶ 47.) Here,

several bank applications to release blocked funds were

responsive to Island Film’s request. (Id. ¶ 51.) These

applications contain detailed transactional information about the

blocked financial transactions (id. ¶ 52), such as the names of

involved business entities, the dollar amounts and details of

intended commercial activity, contractual terms, banking

information such as account or routing numbers, and other

details. (Def.’s Mem., Vaughn Index (“Vaughn Index”) ¶¶ 4, 6,

10-11, 13-15, 17-19, 22, 25-26, 35-43, 47, 49-55, 60, 62, 64-65,

68-69, 71-72, 76-88.) This kind of information is readily

characterized as commercial or financial within the meaning of

the exemption. Treasury maintains that public disclosure of

documents submitted by license applicants would impair OFAC’s

ability to obtain sensitive information in the future.

Applicants who believed that information in their applications
 - 12 -

might become public, the argument goes, would have incentives

either to provide as little information as possible or to not

apply at all, thus depriving OFAC of important information about

commercial activity of a sanction subject. (Canter Decl. ¶ 50.)

Island Film does not dispute Treasury’s position that disclosure

would impair the agency’s collection of information. Nor does

Island Film dispute Treasury’s representation (id. ¶ 49) that

public disclosure of these documents could also cause the

applicants competitive harm by allowing competitors to gain

access to information regarding business operations, confidential

contacts, and financial and expense data. Treasury’s

representation is reasonable. Release of the specified

categories of information, particularly sensitive information

such as contractual terms and banking information, could cause

the applicants competitive harm by revealing customer identities

and transaction details, and cause the customers to seek the

services of competitors who may seem better able to protect their

financial privacy. (Id.) Thus, Treasury properly withheld these

applications under Exemption 4.5

5
Responses to administrative subpoenas and OFAC reports on
blocked assets contain similar business expense details and
amounts. (Canter Decl. ¶¶ 53-54, 58-60; Vaughn Index ¶¶ 35-37;
65.) This information is both commercial and confidential, and
Treasury therefore properly withheld these documents under
Exemption 4 as well.
 - 13 -

C. Exemption 5

Treasury seeks to withhold certain information under the

deliberative process privilege. An agency is not required to

disclose “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).

This exemption has been construed to protect from disclosure

documents that would not be subject to disclosure in the civil

discovery context. Rockwell Int’l Corp. v. U.S. Dep’t of

Justice, 235 F.3d 598, 601 (D.C. Cir. 2001). Documents are

protected from disclosure in such a context if they are created

in the course of “the deliberative process that precedes most

decisions of government agencies.” Russell v. Dep’t of the Air

Force, 682 F.2d 1045, 1047 (D.C. Cir. 1982). The D.C. Circuit

has reasoned that the exemption is justified on the grounds that

it protects debate and candid consideration of alternatives

within an agency, protects the public from “‘the confusion that

would result from premature exposure to discussions occurring

before the policies affecting it had actually been settled

upon[,]’” and protects the integrity of the decision-making

process. Id. at 1048 (quoting Jordan v. U.S. Dep’t of Justice,

591 F.2d 753, 772-73 (D.C. Cir. 1978) (en banc)). This executive

deliberative process privilege applies only if the document is

“predecisional” –– prepared to aid a decision-maker in arriving
 - 14 -

at his decision, not to support a past decision –– and

“deliberative” –– concerning legal or policy, not factual

matters. Citizens for Responsibility & Ethics in Wash. v. Nat’l

Archives and Records Admin., 715 F. Supp. 2d 134, 139-40 (D.D.C.

2010). The crux of the inquiry is whether disclosure of the

information would discourage candid discussion within the agency,

Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1195 (D.C.

Cir. 1991), and a court must show particular deference to the

agency’s assessment on this matter, since the agency possesses

unique knowledge of its decision-making process. Pfeiffer v.

CIA, 721 F. Supp. 337, 340 (D.D.C. 1989).

Here, Treasury has indicated with reasonable specificity

that it has redacted employees’ internal discussions regarding a

pending licensing matter, internal administrative markings on

documents, internal notes, and draft correspondence and documents

that it claims are part of OFAC’s deliberative process. (Vaughn

Index ¶¶ 11, 14, 23, 27-28, 37, 44-46, 63-64.) The agency’s

assessment is that release of such notes, drafts, and internal

memoranda would chill future predecisional discussion and debate.

(Canter Decl. ¶ 63.) The description of the withheld records

provided by the Vaughn index and agency affidavit sufficiently

support the conclusion that the records were made to facilitate

the agency’s policy determination about how to respond to license

applications. The plaintiff has cited no contradictory evidence
 - 15 -

in the record, or provided any evidence bad faith, to undermine

the agency’s assessment that disclosure of the withheld records

would inhibit candor in future agency deliberations. Because

this assessment therefore is entitled to deference, Treasury

properly redacted these portions of documents under Exemption 5.

D. Exemptions 6 and 7(C)

Treasury seeks to withhold the names and addresses of low-

level government employees and third parties that appear in

responsive records. An agency is not required to disclose

“personnel . . . and similar files the disclosure of which would

constitute a clearly unwarranted invasion of personal privacy[,]”

5 U.S.C. § 552(b)(6), or “records or information compiled for law

enforcement purposes . . . that . . . could reasonably be

expected to constitute an unwarranted invasion of personal

privacy[.]” 5 U.S.C. § 552(b)(7)(C). The government’s burden to

justify withholding personal identifying information is reduced

as compared to other types of information. Citizens for

Responsibility and Ethics in Wash. v. U.S. Dep’t of Justice, 658

F. Supp. 2d 217, 239 (D.D.C. 2009). “Both Exemptions 6 and 7(C)

require the Court to balance privacy interests against the

public’s interest in release of the requested information,

keeping in mind that disclosure of personal information does not

necessarily contribute to FOIA’s central purpose of fostering an

understanding of the government’s activities and conduct.” Id.
 - 16 -

at 238-39 (considering Exemptions 6 and 7(C) concurrently).

While all individuals have a privacy interest under Exemption

7(C) of personal information contained in law enforcement

records, see Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115

(D.C. Cir. 2007), whether individuals have a privacy interest in

their names and addresses under Exemption 6 depends on the

context and anticipated consequences of disclosure. Morley v.

CIA, 508 F.3d 1108, 1128 (D.C. Cir. 2007). Once the agency

identifies a privacy interest, the plaintiff must identify a

countervailing public interest that disclosure is likely to

advance. Am. Civil Liberties Union v. Dep’t of Justice, 698 F.

Supp. 2d 163, 165 (D.D.C. 2010).

Here, Treasury has redacted some personal information,

including the names, of low-level agency personnel and third

parties under Exemption 6 alone, some under Exemption 7(C) alone,

and some under both exemptions. (Def.’s Mem. at 25, 28; Vaughn

Index ¶¶ 1-9, 11-24, 26-30, 32-35, 37-38, 40-42, 44-45, 47-50.)

For personal information about third parties contained in OFAC’s

investigative files, which it compiles to determine whether

certain individuals or business entities should be subjected to

enforcement actions or civil penalties for failure to comply with

sanction regulations, Treasury invokes Exemption 7(C). (Canter

Decl. ¶ 72.) Because the purpose of these investigatory files is

to identify violations of law, and these investigations are
 - 17 -

related to OFAC’s duty to enforce sanctions regulations, the

third parties to which the files refer have a privacy interest in

the personal information the files contain. See Jefferson v.

Dep’t of Justice, Office of Prof’l Responsibility, 284 F.3d 172,

177 (D.C. Cir. 2002). For personal information about agency

personnel and third parties not contained in investigative files,

Treasury invokes Exemption 6. (Canter Decl. ¶ 66.) OFAC

evaluated the consequences of disclosure and concluded that

public association with a sanctions investigation or sanctions

administration function could be stigmatizing or pose a threat to

the safety of the individuals to which the records refer. (Id.

(noting that the individuals could face unwarranted public

scrutiny or harassing phone calls to elicit sensitive

information).) These individuals have a privacy interest in

avoiding the harassment that could ensue following the disclosure

of their personal information. See Judicial Watch, Inc. v. FDA,

449 F.3d 141, 153 (D.C. Cir. 2006). Because Island Film has not

asserted a countervailing public interest in the disclosure of

these names and addresses, and no public interest is readily

apparent, see id., Treasury properly redacted this information

under Exemptions 6 and 7(C).

E. Exemption 7(D)

Treasury seeks to withhold financial transactions details

submitted to OFAC under an express grant of confidentiality and
 - 18 -

correspondence from a confidential source. (Def.’s Mem. at 30;

Vaughn Index ¶¶ 25, 65, 73-75.) An agency is not required to

disclose “the identity of a confidential source . . . and, in the

case of a record or information compiled by criminal law

enforcement authority in the course of a criminal investigation

or by an agency conducting a lawful national security

intelligence investigation, information furnished by a

confidential source.” 5 U.S.C. § 552(b)(7)(D). “Under Exemption

7(D), the question is not whether the requested document is of

the type that the agency usually treats as confidential, but

whether the particular source spoke with an understanding that

the communication would remain confidential.” U.S. Dep’t of

Justice v. Landano, 508 U.S. 165, 172 (1993) (emphasis in

original). An assurance of confidentiality can be express or

implied. Mays v. Drug Enforcement Admin., 234 F.3d 1324, 1328

(D.C. Cir. 2000). Express evidence of confidentiality can

include, among other things, “notations on the face of the

withheld document, the personal knowledge of an official familiar

with the source, a statement by the source, or contemporaneous

documents discussing practices or policies for dealing with the

source or similarly situated sources.” Id. at 1328-29.

Alternatively, the nature of the crime being investigated and the

informant’s relation to it may support an inference of

confidentiality. Landano, 508 U.S. at 181. Crimes involving
 - 19 -

violence and the risk of retaliation warrant an implied grant of

confidentiality. See, e.g., Williams v. FBI, 69 F.3d 1155, 1159-

60 (D.C. Cir. 1995) (per curiam) (identifying “rebellion or

insurrection, seditious conspiracy, and advocating overthrow of

the government” by criminal organizations with histories of

violence as warranting the inference); Mays, 234 F.3d at 1329-31

(identifying drug trafficking as warranting the inference); Owens

v. U.S. Dep’t of Justice, Civil Action No. 04-1701 (JDB), 2007 WL

778980, at *11 (D.D.C. Mar. 9, 2007) (identifying terrorist

attacks as warranting the inference). Cf. Computer Prof’ls for

Social Responsibility v. U.S. Secret Serv., 72 F.3d 897, 906

(D.C. Cir. 1996) (refusing to identify computer crimes as

warranting the inference).

Here, Treasury has withheld correspondence obtained under

circumstances it claims warrant an inference of confidentiality

and blocked asset reports filed under 31 C.F.R. § 501.603.

(Canter Decl. ¶¶ 74-75.) The blocked asset report regulation

provides that the reports “are regarded as privileged and

confidential.” 31 C.F.R. § 501.603(a)(2). This language is an

express assurance of confidentiality, and Treasury properly

withheld the reports under Exemption 7(D). However, Treasury has

not provided express evidence that its sources drafted the

correspondence under a promise of confidentiality. (See Canter

Decl. ¶ 74 (stating that the OFAC obtained the information “in
 - 20 -

circumstances under which there is at least an implied promise of

confidentiality”).) Because the act is economic in nature and

not inherently violent, providing information regarding sanctions

violations is more closely analogous to providing information on

computer crimes than to providing information about rebellion or

insurrection, drug trafficking or terrorism. Additionally,

OFAC’s assurance that it generally “treats such correspondence”

(id.) as confidential is insufficient to warrant an inference

that it provided such an assurance for the correspondence that is

at issue here. See Computer Prof’ls for Social Responsibility,

72 F.3d at 906 (noting that “the manner in which an agency

‘routinely’ handles information is not sufficient to establish an

implied assurance of confidentiality as to any particular

source”). Treasury therefore has not provided sufficient support

for withholding the correspondence, and it will be ordered to

supplement its affidavit and Vaughn index with respect to those

documents.

F. Exemption 7(E)

Treasury seeks to withhold screen printouts from various

databases it used in its investigations. (Def.’s Mem. at 33;

Vaughn Index ¶¶ 89-118.) An agency is not required to disclose

information that would reveal “techniques and procedures for law

enforcement investigations or prosecutions, or would disclose

guidelines for law enforcement investigations or prosecutions if
 - 21 -

such disclosure could reasonably be expected to risk

circumvention of the law[.]” 5 U.S.C. § 552(b)(7)(E). This

exemption includes materials related to the sources of law

enforcement investigations. See Morley, 508 F.3d at 1129.

Here, Treasury asserts that the public is generally unaware

of which databases OFAC uses in its investigations, and that if

individuals under investigation knew “when, how, and to what

extent Treasury relies on certain databases as part of its

investigations, they could find this information valuable in

indirectly tracking, or even obstructing, an investigation[.]”

(Canter Decl. ¶ 77.) However, the documents themselves do not

describe OFAC’s procedure for accessing certain databases in the

course of its investigations. Cf. Am. Civil Liberties Union v.

U.S. Dep’t of Homeland Sec., Civil Action No. 08-1100 (RBW), 2010

WL 3718944, at *21 (D.D.C. Sep. 20, 2010) (finding withholding of

document proper where it contains the process and protocol for

accessing databases). Neither the Vaughn index nor Treasury’s

affidavit provides a sufficiently specific link between

disclosing the particular database printouts that Treasury seeks

to withhold and revealing when, how, and to what extent OFAC

relies on these databases in its investigations. Rather, they

both merely recite the language of the exemption. See Hussain v.

U.S. Dep’t of Homeland Sec., 674 F. Supp. 2d 260, 271-72 (D.D.C.

2009) (rejecting withholding of documents under Exemption 7(D)
 - 22 -

where the agency parroted the language of the statute and did not

explain with any specificity why the release of the documents

would reveal investigatory techniques). In the absence of such

an explanation linking disclosure to the risk of circumventing

the law, Treasury has not provided a sufficient basis for

withholding these documents under Exemption 7(D), and it will be

ordered to supplement its affidavit and Vaughn index with respect

to these documents.

III. SEGREGABILITY

An agency must disclose “[a]ny reasonably segregable

portion” of an otherwise exempt record. 5 U.S.C. § 552(b); see

also Mead Data, 566 F.2d at 260 (noting that because “[t]he focus

of the FOIA is information, not documents, . . . an agency cannot

justify withholding an entire document simply by showing that it

contains some exempt material”) (emphasis added). An agency

cannot withhold non-exempt portions of a document unless they

“are inextricably intertwined with exempt portions.” Mead Data,

566 F.2d at 260-61 (suggesting that an agency would not be

required to disclose a document if, after removing all exempt

portions, “an essentially meaningless set of words and phrases”

remained). While an agency is presumed to have complied with its

obligation to disclose non-exempt portions of the record,

Sussman, 494 F.3d at 1117, a “district court must make specific
 - 23 -

findings of segregability regarding the documents to be

withheld,” id. at 1116.

To demonstrate that the withholding agency has disclosed all

reasonably segregable material, “the withholding agency must

supply ‘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.’” King v. U.S. Dep’t of

Justice, 830 F.2d 210, 224 (D.C. Cir. 1987) (quoting Mead Data,

566 F.2d at 251). Johnson v. Executive Office for U.S.

Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002), determined that a

“comprehensive Vaughn index, describing each document withheld,

as well as the exemption under which it was withheld”

supplemented by an affidavit indicating that an agency official

conducted a review of each document and determined that the

documents did not contain segregable information was sufficient

to fulfill the agency’s obligation to establish a detailed

justification for not disclosing the non-exempt portions of the

documents. See also Juarez v. Dep’t of Justice, 518 F.3d 54, 61

(D.C. Cir. 2008) (noting that a court “may rely on government

affidavits that show with reasonable specificity why documents

withheld pursuant to a valid exemption cannot be further

segregated for this reason”); Gutman v. U.S. Dep’t of Justice,

238 F. Supp. 2d 284, 296 (D.D.C. 2003) (stating that the
 - 24 -

segregability requirement was satisfied in part because the

Vaughn index detailed “each document’s issue date, subject

matter, authorship, the intended recipient, the exemption under

which any pages are withheld, and an explanation as to why the

exemption applies to the document”).

Treasury has withheld documents 73 through 75, the

correspondence from purported confidential sources, and 89

through 118, the screen printouts from various Treasury

databases, in full. (See Vaughn Index ¶¶ 73-75, 89-118.)

Although Treasury has invoked multiple exemptions –– not merely

Exemptions 7(D) and 7(E), for which Treasury has not provided

adequate support –– to justify withholding these documents, the

remaining exemptions apply only to names and addresses,

information that is potentially segregable from the remainder of

the documents. It therefore may be possible to redact this

information without withholding these documents in full.

Accordingly, Treasury also will be ordered to supplement its

Vaughn index and supporting affidavit to reflect whether Treasury

could disclose portions of these documents in the event that its

supplemental justifications for invoking Exemptions 7(D) and 7(E)

are found to be insufficient.

However, with respect to all other withheld documents, the

Vaughn index is sufficiently comprehensive, describing the

exemptions invoked and the parts of the document to which the
 - 25 -

exemptions apply. Moreover, Canter’s declaration states that

“Treasury conducted a page-by-page review of the material

responsive to plaintiff’s FOIA request to determine what material

. . . could be disclosed and what material was exempt from

disclosure[,]” and “all reasonably segregable information has

been released wherever possible unless the information is

inextricably intertwined with information properly withheld[.]”

(Canter Decl. ¶ 78.) As in Johnson, Treasury has adequately

demonstrated through the combination of the Vaughn index

description and the Canter declaration that these remaining

documents contain no reasonably segregable, non-exempt

information.

CONCLUSION AND ORDER

Although Treasury properly invoked Exemptions 4, 5, 6, and

7(C), its justification for invoking Exemption 2 is precluded by

Milner and it has not provided sufficient evidence to support its

invocation of Exemptions 7(D) and 7(E). Accordingly, it is

hereby

ORDERED that the defendant’s motion [11] for summary

judgment be, and hereby is, GRANTED in part and DENIED without

prejudice in part. Judgment is entered for the defendant with

respect to Exemptions 4, 5, 6, and 7(C). The plaintiff’s cross-

motion [12] is DENIED as to material withheld under those

exemptions. It is further
 - 26 -

ORDERED that the defendant by July 17, 2012 supplement its

briefing regarding the redacted case tracking numbers and

supplement its Vaughn index and supporting affidavit both to

properly justify the withholding of documents under FOIA

Exemptions 7(D) and 7(E), and to reflect whether it could

disclose portions of these documents in the event that its

supplemental justifications for invoking Exemptions 7(D) and 7(E)

are found to be insufficient.

SIGNED this 26th day of June, 2012.

/s/
RICHARD W. ROBERTS
United States District Judge