Holt v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

___________________________________
)
MARVIN LEON HOLT, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1515 (RBW)
)
UNITED STATES DEPARTMENT )
OF JUSTICE, et al., )
)
Defendants. )
___________________________________ )

MEMORANDUM OPINION

The plaintiff brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552, and the Privacy Act, 5 U.S.C. § 552a, against the United States Department of Justice

(“DOJ”).1 This matter is currently before the Court on the DOJ’s motion for summary judgment.

For the reasons discussed below, the motion will be granted in part and denied in part.

I. BACKGROUND

A. Requests to the Executive Office for United States Attorneys (“EOUSA”)

1. Request No. 08-869

The plaintiff submitted a FOIA request to the EOUSA on March 5, 2002. Complaint

(“Compl.”) at 2. He sought the following information:

1
For purposes of the FOIA, the term “agency” includes “any executive department,
military department, Government corporation, Government controlled corporation, or other
establishment in the Executive Branch of the Government . . ., or any independent regulatory
agency.” 5 U.S.C. § 552(f)(1). The DOJ is an executive agency to which the FOIA applies, and
the Court considers the DOJ as the proper party defendant.

1
 [A]ny and all materials for the entire central file that your agency . .
. has compiled to date, relating to me, and a list of whatever
information your agency[] . . . may have designated in this file or any
portion thereof, and the reason for each designation, and the name of
the person and his or her title requesting same.

Memorandum of Points and Authorities in Support of Motion for Summary Judgment on Behalf

of Defendants Executive Office for United States Attorneys and Federal Bureau of Investigation

(“Def.’s Mem.”), Declaration (“Decl.”) of David Luczynski (“Luczynski Decl.”), Exhibit (“Ex.”)

A (FOIA Request) at 1.2 EOUSA staff assigned to the portion of the request seeking access to

records about himself a tracking number, Request Number (“No.”) 02-857. Id., Luczynski Decl.

¶ 6.

On April 11, 2007, the EOUSA advised the plaintiff that two boxes of potentially

responsive records had been located at the United States Attorney’s Office for the District of

Columbia (“USAO DDC”).3 Compl. at 3-4; Def.’s Mem., Luczynski Decl. ¶ 8. In order to limit

the potential fees incurred for searching and copying so many records, the EOUSA informed the

plaintiff of his opportunity to reformulate his request. Def.’s Mem., Luczynski Decl., Ex. E

(April 11, 2007 letter from W.G. Stewart II, Assistant Director, FOIA and Privacy Act Staff,

2
In addition, the plaintiff requested files pertaining to “Mark Williams, Robert
Smith and notices and summaries of Det. Vivian Col[e]man, James F. Johnson & Michael
Baylor.” Def.’s Mem., Luczynski Decl., Ex. A at 2. Insofar as the plaintiff sought records
pertaining to third parties, the EOUSA denied this portion of the request because the plaintiff
provided neither written authorization from these third parties for release of any records
pertaining to them, proof of their death, nor a public interest sufficient to outweigh their personal
privacy interest. Id., Ex. B (EOUSA correspondence regarding Request Number (“No.”) 02-
856) at 1.
3
Apparently in error, by letter dated April 18, 2008, the EOUSA advised the
plaintiff that the USAO DDC located no records responsive to his FOIA request. Def.’s Mem.,
Luczynski Decl. ¶ 7.

2
EOUSA, DOJ). The plaintiff’s reformulated FOIA request read as follows:

I was indicted [on] [November] 12, 1992, criminal No. F-8825-92.
I am requesting the testimony of Janet, Lawence, Irving Miller, Edith
Diane Moye, Qugustine Williams, Tracy Locks, Karen Thompson,
Curtis Dixon, Tyrone Thomas, Rober Smith, Mark Williams, Michael
Williams and Jake. I am requesting everything pertaining to this
case, with the exception of the trial transcript, Michael Baylor and
Carolyn grand jury statements. I am requesting the investigators [sic]
notes of Michael Baylor, Jame[s] F. Johnson, Viv[i]an Coleman and
Charles Culver.

Id., Ex. F (April 20, 2007 reformulated FOIA request). The EOUSA assigned the portion of

reformulated request for records about the plaintiff a new tracking number, Request No. 08-869.4

Id., Ex. G (April 2, 2008 letter from W.G. Stewart II) at 1; see Compl. at 4.

On April 17, 2009, the EOUSA released to the plaintiff six pages of records in full and 20

pages of records in part, after having redacted certain information under FOIA Exemptions 7(C),

7(D), and 7(F). Compl. at 5; Def.’s Mem., Luczynski Decl. ¶ 11. The plaintiff appealed this

decision administratively to the DOJ’s Office of Information and Privacy (“OIP”), Def.’s Mem.,

Luczyinski Decl. ¶¶ 12-13; see Compl. at 5, and the OIP affirmed the EOUSA’s action, Def.’s

Mem., Luczynski Decl. ¶ 14.

2. Request Nos. 09-1701 and 09-2392

In 2009, the plaintiff submitted a FOIA request directly to the USAO DDC. Compl. at 6.

He sought the following information:

[A]ny and all records, information, reports, or other files that relate
to me specifically and/or make reference to me indirectly in regards

4
Again, the EOUSA denied the portion of the FOIA request for records pertaining
to third parties, id., Luczynski Decl. ¶ 15, and denied the request because the plaintiff had not
provided “an express agreement and consent form from the third [parties], proof of death, or a
showing of how the information benefits the public interest,” id.

3
 to a homicide that occurred on or about May 14, 1992, in the
Northeastern secture [sic] of Washington, DC, at about 1:30 AM.
The victim’s name is LEWIS McCLAIN, but this request should not
be construed as requesting information of [a] personal nature related
to Mr. McCLAIN. I was tried and convicted of Mr. McCLAIN’s
murder in the Superior Court for the District of Columbia. This
request is made to discover any evidence that may serve to exonerate
me of Mr. McCLAIN’s death, or serve to support my post-conviction
litigation.

Def.’s Mem., Luczynski Decl., Ex. M (April 21, 2009 letter to the USAO DDC) at 2. The

request was forwarded to the EOUSA for processing, id., Ex. N (May 7, 2009 letter from A.L.

Dennis, FOIA Paralegal Specialist, Civil Division, USAO DDC), and the EOUSA assigned it a

tracking number, Request No. 09-1701, see id., Ex. O (May 18, 2009 letter from W.G. Stewart

II) at 1. The EOUSA also closed this request because the plaintiff had not submitted proof of his

identity. Id., Ex. O at 1-2. Upon receipt of the plaintiff’s certificate of identity, and upon review

of the request, EOUSA staff determined that the request, assigned Request No. 09-2392, was a

duplicate, and closed it administratively. Id., Luczyinski Decl. ¶¶ 18-19.

B. Request to the Federal Bureau of Investigation (“FBI”)

In January 2009, the plaintiff submitted a FOIA request to the FBI’s Washington, D.C.

field office. Compl. at 6. He sought the following information:

any and all records, information, reports or other files that relate to
me specifically and/or make reference to me indirectly in regards to
a homicide that occurred on or about May 14, 1992, in the
Northeastern secture [sic] of Washington, DC, at about 1:30 AM.
The victim’s name is LEWIS McCLAIN, but this request should not
be construed as requesting information of [a] personal nature related
to Mr. McCLAIN. I was tried and convicted of Mr. McCLAIN’s
murder in the Superior Court for the District of Columbia. This
request is made to discover any evidence that may serve to exonerate
me of Mr. McCLAIN’s death, or serve to support my post-conviction
litigation.

4
Def.’s Mem., Declaration of Dennis J. Argall (“Argall Decl.”), Ex. FBI-A (FOIA Request). The

field office forwarded the request to FBI Headquarters (“FBIHQ”) for processing. Id., Ex. FBI-

B (February 4, 2009 letter from D.M. Hardy, Section Chief, Record/Information Dissemination

Section, Records Management Division, FBIHQ). FBIHQ staff assigned the request a tracking

number, FOIPA No. 1125838-000, id., and on April 30, 2009, the agency released 24 pages of

records in part, after having redacted certain information under FOIA Exemptions 6 and 7(C),

id., Ex. FBI-C at 1. These records originated from Washington Field Office file 88A-WF-

182216. Id. at 2.

II. DISCUSSION

A. Summary Judgment Standard of Review

The Court will grant a motion for summary judgment if the pleadings, the discovery and

disclosure materials on file, together with any affidavits or declarations, show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating the absence of a

genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[A] material

fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party” on an element of the claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). Factual assertions in the moving party’s affidavits or declarations may be accepted

as true unless the opposing party submits his own affidavits or declarations or documentary

evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). In opposing a

summary judgment motion, a party may not “replace conclusory allegations of the complaint or

answer with conclusory allegations of an affidavit,” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,

5
888 (1990), but rather must “set forth specific facts showing that there is a genuine issue for

trial,” Liberty Lobby, 477 U.S. at 248 (internal quotation marks omitted).

In a FOIA case, the Court may grant summary judgment based on information provided

in an agency’s affidavits or declarations when they “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.” Military Audit Project v.

Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a

presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the

existence and discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d

1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771

(D.C. Cir. 1981)).

“In opposing a motion for summary judgment or cross-moving for summary judgment, a

FOIA plaintiff must offer more than conclusory statements.” Schoenman v. FBI, 573 F. Supp.

2d 119, 134 (D.D.C. 2008) (citations omitted). Rather, “a plaintiff pursuing an action under

FOIA must establish that either: (1) the Vaughn index does not establish that the documents

were properly withheld; (2) the agency has improperly claimed an exemption as a matter of law;

or (3) the agency has failed to segregate and disclose all nonexempt material in the requested

documents.” Id. (citations omitted).

B. Searches for Records Responsive to the Plaintiff’s FOIA Requests

“An agency fulfills its obligations under FOIA if it can demonstrate beyond material

doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-

6
Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of

State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. U.S. Dep’t of Justice, 23 F.3d

548, 551 (D.C. Cir. 1994). To meet its burden, the agency may submit affidavits or declarations

that explain in reasonable detail the scope and method of the agency’s search. Perry v. Block,

684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or

declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127.

However, if the record “leaves substantial doubt as to the sufficiency of the search, summary

judgment for the agency is not proper.” Truitt, 897 F.2d at 542.

1. The EOUSA’s Search

“Each United States Attorney’s Office maintains the case files for criminal matters

prosecuted by that office.” Def.’s Mem., Luczynski Decl. ¶ 20. Because the plaintiff had been

prosecuted in the District of Columbia, the EOUSA forwarded Request No. 08-869 to the FOIA

Coordinator at the USAO DDC. Id.; Def.’s Mem., Ex. Q (“Dennis Decl.”) ¶¶ 1, 3.

The USAO DDC “has a computerized docketing/case management system known as

Master Index System (MI [System]) . . . [, which] allows the user to search all USAO matters

using a specific name.” Def.’s Mem., Ex. Q (“Dennis Decl.”) ¶ 4. “The MI [S]ystem is capable

of cross-referencing other related cases if such related case information is entered into the

system.” Id. Using variations of the plaintiff’s name, his date of birth and criminal case number

as search terms, a search of the MI System and of criminal case records stored at the Federal

Records Center yielded the case file for criminal case F-8825-92. Id. ¶ 5; see id., Ex. USAO

DDC-A (Certification of Search executed on February 27, 2009).

The plaintiff counters that the EOUSA fails to “explain away the fact that in over seven

7
years the [p]laintiff has got nothing but 26 pages of heavily redacted documents, eight FOIA

case file numbers, and a big headache.” Plaintiff’s Pro Se Opposition to the Defendants’ Motion

for Summary Judgment (“Pl.’s Opp’n”) at 11-12. He attributes the extensive delay in responding

to his FOIA request, and the confusing assignment of multiple tracking numbers to what he

considered a single FOIA request, to the agency’s bad faith. See generally id. at 7-11. And he

further opines that “[t]he only thing the evidence in this case establishes is that the EOUSA

reasonably calculated to obstruct, empede [sic], and hinder the [p]laintiff’s access to documents

he’s entitled to have under the FOIA.” Id. at 12.

Notwithstanding the plaintiff’s understandable impatience and exasperation with the

EOUSA’s delay in responding to his FOIA request, the plaintiff points to no evidence in the

record to undermine the credibility of the defendant’s supporting affidavits regarding the scope

and method of the search conducted by the USAO DDC. On this record, the Court concludes

that the methods by which the EOUSA and the USAO DDC staff searched for responsive

records were reasonable under the circumstances. The plaintiff’s obvious mistrust after waiting

nearly seven years for a substantive response to his FOIA requests, absent support for his

allegations of agency bad faith, does not render the searches inadequate. See, e.g., Judicial

Watch, Inc. v. U.S. Dep’t of Health & Human Servs., 27 F. Supp. 2d 240, 244 (D.D.C. 1998)

(concluding that the “plaintiff’s speculation as to the trustworthiness of the Clinton

administration and [the agency’s] failure to release documents that plaintiff apparently expected

to be released is insufficient as a matter of law to defeat defendant’s motion for summary

judgment as to the adequacy of the FOIA search”).

2. The FBI’s Search

8
 With its Central Records System (“CRS”), the FBI maintains “administrative, applicant,

criminal, personnel, and other files” acquired and compiled in the course of conducting “its

mandated law enforcement responsibilities.” Def.’s Mem., Argall Decl. ¶ 12. The CRS is

organized into a numerical sequence of files which are categorized according to subject matter,

and a file’s subject matter “may relate to an individual, organization, company, publication,

activity, or foreign intelligence matter.” Id. “Certain records in the CRS are maintained at

FBIHQ,” while others are maintained at the pertinent field office. Id.

The CRS is accessed through the use of alphabetically arranged General Indices. Id. ¶

13. There are two categories of General Indices: “main” entries and “reference” entries. Id. The

former “carr[y] the name corresponding with a subject of a file contained in the CRS,” and the

latter (also known as cross-references) “generally [are] only a mere mention or reference to an

individual . . . or other subject matter[] contained in a document located in another ‘main’ file on

a different subject matter.” Id. The FBI “uses the CRS to conduct searches that are likely to

yield documents responsive to FOIA and Privacy Act requests,” and such searches are conducted

using the Automated Case Support System (“ACS System”). Id. ¶ 12.

The CRS System “cannot electronically query the case files for data, such as an

individual’s name or social security number,” and therefore “the required information is

duplicated and moved to the ACS [System] so that it can be searched.” Def.’s Mem., Argall

Decl. ¶ 15. The “ACS [System] consists of three integrated, yet separately functional, automated

applications that support case management functions for all FBI investigative and administrative

cases.” Id. ¶ 16. These three applications are Investigative Case Management (“ICM”),

Electronic Case File (“ECF”), and Universal Index (“UNI”). Id. The ICM allows for the

9
opening, assignment, and closing of investigative and administrative cases, and for the

assignment and tracking of leads. Id. ¶ 16(a). When a case is opened, it is assigned a Universal

Case File Number which is used by the FBIHQ and all field offices conducting or assisting in an

investigation. Id. The first three digits of the assigned number correspond to the classification

for the type of investigation; the next characters of the number (which are actually letters)

designate the field office of origin; and the last series of digits comprising the number denote the

individual case file number for a particular investigation. Id.

The ECF “is the central electronic repository for the FBI’s official text-based

documents,” id. ¶ 16(b), and UNI provides “a complete subject/case index to all investigative

and administrative cases,” id. ¶ 16(c). The investigative Special Agent assigned to work on an

investigation, the Supervisory Agent in the field office conducting the investigation, and the

Supervisory Agent at FBI headquarters determine whether to index names other than by subjects,

suspects, and victims. Id. ¶ 17. Only information deemed “pertinent, relevant, or essential for

future retrieval” is indexed. Id. Otherwise, FBI files “would . . . be merely archival in nature.”

Id. Thus, “the General Indices to the CRS files are the means by which the FBI can determine

what retrievable information, if any, the FBI may have in its CRS files on a particular subject

matter or individual.” Id.

Notwithstanding the FBI’s policy “to search for and identify only ‘main’ files responsive

to FOIA/Privacy Act requests at the initial stage,” FBI staff also “conducted a second search of

the CRS to locate cross-references responsive to [the] plaintiff’s request.” Def.’s Mem., Argall

Decl. ¶ 18. Using variations of the plaintiff’s name as search terms, the search located “main file

88A-WF-182216 (HQ) as potentially responsive.” Id. Also located were “four files in which the

10
plaintiff is mentioned as a cross-reference only,” id., and the FBI has processed three of these

cross-reference files. Id. “The fourth cross-reference file consists of three pages which

originated within another federal government agency,” id., the Federal Bureau of Prisons

(“BOP”), id. ¶ 19. The FBI referred these three pages to the BOP for its direct response to the

plaintiff’s FOIA request. Id.

Plaintiff raises no particular objection to the FBI’s search for responsive records.

However, he notes that neither declaration indicates that the declarant personally conducted a

search, or that each declaration is based on the declarant’s personal knowledge of the handling of

his FOIA requests. Pl.’s Opp’n at 15-16. In this case, however, each declarant has stated his or

her familiarity with the component’s procedures for handling FOIA and Privacy Act requests,

and each declaration is based on the declarant’s review of the component’s official files. See

Def.’s Mem., Luczynski Decl. ¶¶ 2-3, Dennis Decl. ¶ 2, & Argall Decl. ¶ 3. The Court may

accept the declaration of a person who did not conduct the search itself “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) (internal quotation marks and citations omitted). Thus, the declarant

need not have conducted the search himself. See Willis v. U.S. Dep’t of Justice, 581 F. Supp. 2d

57, 66 (D.D.C. 2008) (noting that an agency’s supporting “affidavits may be submitted by an

official who coordinated the search, and need not be from each individual who participated in the

search.”).

On this record the Court finds that the FBI has established that its search for records

responsive to the plaintiff’s FOIA request satisfies the requirements of the FOIA.

11
 C. Analysis Under the Privacy Act

In relevant part, the Privacy Act provides:

The head of any agency may promulgate rules . . . to exempt any
system of records within the agency from [certain parts of the Act] .
. . if 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 laws, including
police efforts to prevent, control, or reduce crime or to apprehend
criminals, and the activities of prosecutors, courts, correctional,
probation, pardon, or parole authorities, and which consists of (A)
information compiled for the purpose of identifying individual
criminal offenders and alleged offenders and consisting only of
identifying data and notations of arrests, the nature and disposition of
criminal charges, sentencing, confinement, release, and parole and
probation status; (B) information compiled for the purpose of a
criminal investigation, including reports of informants and
investigators, and associated with an identifiable individual; or (C)
reports identifiable to an individual compiled at any stage of the
process of enforcement of the criminal laws from arrest or indictment
through release from supervision.

5 U.S.C. § 552a(j)(2).

“The EOUSA’s Criminal Case Files (Justice/USA-007) are contained in a Privacy Act

System of Records,” and “the Attorney General has promulgated rules exempting these records

from the Privacy Act’s access provisions as authorized by 5 U.S.C. § 552a(j)(2).” Def.’s Mem.,

Luczynski Decl. ¶ 23; see 28 C.F.R. § 16.81(4) (2009). Similarly, the FBI’s CRS “is a

component of the FBI’s CRS Privacy Act Records System,” and its records “are exempt from

disclosure pursuant to 5 U.S.C. § 552a(j)(2), in conjunction with 28 C.F.R. § 16.96 (2003).”

Def.’s Mem., Argall Decl. ¶ 25. However, both the EOUSA and the FBI processed “the

documents responsive to the plaintiff’s request . . . under the access provisions of the FOIA to

achieve maximum disclosure.” Id.

D. FOIA Exemptions

12
 The DOJ bears the burden of justifying a decision to withhold records or portions of

records that are responsive to a FOIA request. See 5 U.S.C. § 552(a)(4)(B). However, to

establish justification for the withholding of responsive records the agency’s declarants must

describe the records withheld, and show that the records fall within the claimed exemption or

exemptions. See Canning v. U.S. Dep’t of Justice, 848 F. Supp. 1037, 1043 (D.D.C. 1994).

1. Exemption 2

Exemption 2 shields from disclosure information that is “related solely to the internal

personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). The phrase “personnel rules

and practices” is interpreted to include not only “minor employment matters” but also “other

rules and practices governing agency personnel.” Crooker v. Bureau of Alcohol, Tobacco and

Firearms, 670 F.2d 1051, 1056 (D.C. Cir. 1981) (en banc). The “information need not actually

be ‘rules and practices’ to qualify under [E]xemption 2, as the statute provides that matter

‘related’ to rules and practices is also exempt.” Schwaner v. Dep’t of the Air Force, 898 F.2d

793, 795 (D.C. Cir. 1990).

Exemption 2 applies if the information that is sought meets two criteria. First, such

information must be “used for predominantly internal purposes.” Crooker, 670 F.2d at 1073; see

Nat’l Treasury Employees Union v. U.S. Customs Serv., 802 F.2d 525, 528 (D.C. Cir. 1986).

Second, the agency must show either that “disclosure may risk circumvention of agency

regulation,” or that “the material relates to trivial administrative matters of no genuine public

interest.” Schwaner, 898 F.2d at 794 (citations omitted).

“Predominantly internal documents the disclosure of which would risk circumvention of

agency statutes and regulations are protected by the so-called ‘high 2’ exemption.” Schiller v.

13
NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992). “High 2” exempt information is “not limited . . .

to situations where penal or enforcement statutes could be circumvented.” Id. at 1208. If the

material at issue merely relates to trivial administrative matters of no genuine public interest, it is

deemed “low 2” exempt material. See Founding Church of Scientology of Washington, D.C.,

Inc. v. Smith, 721 F.2d 828, 830-31 n.4 (D.C. Cir. 1983).

The FBI has redacted from 57 pages of records “the secure website address of the FBI’s

Law Enforcement Online (“LEO”) computer system.” Def.’s Mem., Argall Decl. ¶ 29. The FBI

declarant describes the LEO system as “a controlled-access communications and information-

sharing data repository” which “provides an Internet-accessible focal point for certain electronic

communications and information sharing for the international, federal, state, local and tribal law

enforcement agencies.” Id. Further, the declarant states that the website addresses “relate to the

internal practices of the FBI in that they are utilized by FBI personnel during the performance of

their jobs.” Id. Lastly, the declarant states that disclosure of the secure website address “could

impede the FBI’s effectiveness.” Id. Plaintiff raises no objection to the FBI’s decision to

withhold information under Exemption 2. See Pl.’s Opp’n at 13.

The declaration establishes that the website address falls within the scope of Exemption

2, and the Court concludes that this information properly has been withheld.

2. Exemption 6

Exemption 6 of the FOIA protects from disclosure “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). The FBI’s practice “is to assert Exemption [6] in conjunction

with Exemption [7(C)],” Def.’s Mem., Argall Decl. ¶ 30 n.5, and review of the redacted records

14
shows that the FBI has invoked the exemptions in conjunction with each other in all instances

related to the plaintiff’s FOIA request, see id., Ex. FBI-G (Vaughn index).5 As will be discussed

in the next section, the Court concludes that all the records responsive to the plaintiff’s request

were compiled for law enforcement purposes. The Court will therefore analyze the withholding

of this law enforcement related information under Exemption 7(C), and it need not determine

whether this same information properly has been withheld under Exemption 6.6 See Simon v.

Dep’t of Justice, 980 F.2d 782, 785 (D.C. Cir. 1992).

3. Exemption 7

Exemption 7 of the FOIA protects from disclosure “records or information compiled for

law enforcement purposes,” but only to the extent that disclosure of such records would cause an

enumerated harm. 5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982).

a. Law Enforcement Records

In order to withhold materials properly under Exemption 7, an agency must establish that

the records at issue were compiled for law enforcement purposes, and that the material satisfies

the requirements of one of the subparts of Exemption 7. See Pratt v. Webster, 673 F.2d 408,

413 (D.C. Cir. 1982). In assessing whether records are compiled for law enforcement purposes,

the “focus is on how and under what circumstances the requested files were compiled, and

whether the files sought relate to anything that can fairly be characterized as an enforcement

5
In addition, the FBI has redacted Social Security numbers and dates of birth
wherever they appear in these records pursuant to Rule 5.2 of the Federal Rules of Civil
Procedure and to Local Civil Rule 5.4(f). See generally Def.’s Mem., Argall Decl., Ex. FBI-G.
6
Similarly, where the EOUSA has withheld information under Exemption 7(F) in
conjunction with Exemption 7(C), see Def.’s Mem., Luczynski Decl. ¶¶ 44-45, the Court will
conduct its analysis under Exemption (C) only.

15
proceeding.” Jefferson v. Dep’t of Justice, 284 F.3d 172, 176-77 (D.C. Cir. 2002) (citations and

internal quotations omitted).

Records responsive to the plaintiff’s FOIA request to the FBI were generated when the

District of Columbia Metropolitan Police Department (“MPD”) requested assistance from the

FBI’s Washington Field Office (“WFO”) in apprehending the plaintiff, for whom the Superior

Court of the District of Columbia had issued a felony arrest warrant “for a shooting death which

had occurred in Washington, D.C.” Def.’s Mot., Argall Decl. ¶ 5. On August 20, 1992, “[t]he

plaintiff was arrested by an FBI/MPD Joint Fugitive Apprehension Team.” Id. Some of the

responsive records “pertain to the FBI’s investigation of [the] plaintiff while he was a fugitive

from justice” while others “pertain to an FBI investigation at a prison facility, and to entry of the

plaintiff’s criminal history into the FBI’s [Violent Criminal Apprehension Program (“ViCAP”)]

database.” Id. ¶ 33; see also id. ¶¶ 27-28.

The United States Attorney for the District of Columbia prosecuted the plaintiff’s

criminal case. See Def.’s Mem., Luczynski Decl. ¶ 24. The EOUSA records responsive to the

plaintiff’s FOIA request are maintained in a criminal case file captioned United States v. Marvin

Holt, No. F-8825-92. Id. ¶ 21. This “criminal case file pertains to the criminal investigation of

[the plaintiff] for violation of federal controlled substance laws, for felony murder, and for

various firearms violations,” and the records therein “were complied for criminal law

enforcement purposes by the USAO DDC, which performs as its principal function activities

related to the enforcement of criminal laws.” Id. ¶ 24.

As for the BOP, it is considered a law enforcement agency, see Quinto v. U.S. Dep’t of

Justice, No. 09-2068, 2010 WL 1875623, at *3 (D.D.C. May 11, 2010), and its declarant

16
explains that its records responsive to the plaintiff’s FOIA request “pertained to the investigation

of an inmate-on-inmate assault,” Def.’s Mem., Declaration of Ron Hill ¶ 4. It appears that these

records are created in connection with the BOP’s responsibility to “protect[] inmates, staff, and

the community,” Butler v. Fed. Bureau of Prisons, No. 05-643, 2005 WL 3274573, at * 3

(D.D.C. Sept. 27, 2005), and, therefore relate to the enforcement of federal law.

Both of these two DOJ components readily meet the threshold for Exemption 7 status,

i.e., that the records responsive to the plaintiff’s FOIA requests were compiled for law

enforcement purposes. The records, therefore, fall within the scope of Exemption 7.

b. Public Domain Doctrine

Before proceeding with its analysis of the withholding of the law enforcement records,

the Court will first address the plaintiff’s assertion that all the records withheld under Exemption

7 must be released “because the records have been released into the public domain through

judicial proceedings and media outlets.” Pl.’s Opp’n at 13. Under the public domain doctrine,

records which otherwise may be exempt from disclosure under the FOIA “lose their protective

cloak once disclosed and preserved in a permanent public record.” Cottone v. Reno, 193 F.3d

550, 554 (D.C. Cir. 1999). “[W]here information requested ‘is truly public, then enforcement of

an exemption cannot fulfill its purposes.’” Id. (quoting Niagara Mohawk Power Corp. v. U.S.

Dep’t of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999)). In order to obtain the records he requests,

the plaintiff “has the burden of showing that there is a permanent public record of the exact

[records] he wishes.” Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1280 (D.C. Cir. 1992); see

Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983).

As support for his public domain doctrine argument, the plaintiff points only to his own

17
affidavit, which states that “the government witnesses testified in open court to all of the facts

and circumstances related to the criminal case,” Plaintiff’s Pro Se Opposition to the Defendants’

Motion for Summary Judgment (“Pl.’s Opp’n”), Affidavit of Marvin Leon Holt ¶ 14, and that

“local newspapers . . . published several news articles related to [his] murder and drug charges

trial,” id. ¶ 15. The plaintiff’s affidavit does not suffice, and the plaintiff presents no other

document or other evidence to meet his “initial burden of pointing to specific information in the

public domain that appears to duplicate that being withheld.” Afshar, 702 F.2d at 1130.

Accordingly, the Court concludes that disclosure is not warranted under the public domain

doctrine. See Lieff, Cabraser, Heimann & Bernstein, LLP v. U.S. Dep’t of Justice, No.

09-00157, 2010 WL 1063785, at *5 (D.D.C. Mar. 24, 2010) (rejecting public domain doctrine

argument where the plaintiff’s “several exhibits . . . including news reports, corporate statements,

and a court filing” were “essentially devoid of any specific explanation of the overlap between

the information in these exhibits and in the records [the plaintiff] seeks”).

c. Exemption 7(C)7

Exemption 7(C) protects from disclosure information in law enforcement records that

“could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5

7
The BOP has withheld “the identities and personal information about third party
individuals.” Def.’s Mem., Decl. of Ron Hill (“Hill Decl.”) ¶ 5. Its declarant merely parrots the
language of the FOIA, and it is not clear from review of the redacted records themselves the
basis for withholding certain information appearing on the second of the three pages. A
substantial portion of the information on that page has been redacted without any notation on
each redacted portion identifying the exemption or exemptions claimed. Morever, insofar as the
BOP relies on Exemption 7(C) in conjunction with Exemption 7(F), the declaration offers little
explanation as to how disclosure “could reasonably be expected to endanger the life or physical
safety of any individual.” 5 U.S.C. § 552(b)(7)(F). For these reasons, the Court will deny in part
the defendant’s summary judgment motion.

18
U.S.C. § 552 (b)(7)(C). In determining whether this exemption applies to particular material, the

Court must balance the interest in privacy of individuals mentioned in the records against the

public interest in disclosure. See Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993).

The privacy interest at stake belongs to the individual, not the government agency, see U.S.

Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763-65 (1989);

Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989) (noting

individual’s significant privacy interest “in avoiding the unlimited disclosure of his or her name

and address”), and “individuals have a strong interest in not being associated unwarrantedly with

alleged criminal activity.” Stern v. FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984). “[T]he only public

interest relevant for purposes of Exemption 7(C) is one that focuses on ‘the citizens’ right to be

informed about what their government is up to.’” Davis, 968 F.2d at 1282 (quoting Reporters

Comm., 489 U.S. at 773). It is the requester’s obligation to articulate a public interest sufficient

to outweigh an individual’s privacy interest, and the public interest must be significant. See

Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004).

i. Law Enforcement Agents, Officers and Support Personnel

The EOUSA has withheld under Exemption 7(C) “the names, signatures and badge

numbers of local law enforcement officers and support employees who were responsible for

conducting, supervising, and/or maintaining the investigative activities reported in this

investigation.” Def.’s Mem., Luczynski Decl. ¶ 28. The EOUSA declarant explains that any

publicity “regarding any particular investigation conducted by a state or federal law enforcement

agent may seriously impair [his or her] effectiveness in conducting future investigations.” Id.

He notes that these agents “conduct official inquiries into violations of various criminal statutes

19
and come into contact with all strata of society” whenever they, for example, “conduct searches

and make arrests, both of which result in reasonable, but . . . serious disruptions in the lives of

individuals.” Id. The declarant opines that these individuals might “carry a grudge which may

last for years, and [may] seek revenge on the agents involved in the investigation.” Id. He

therefore concludes that disclosure of their identities and the publicity associated with such

disclosure “could trigger hostility towards the [agents].” Id.

Similarly, under Exemption 7(C) the FBI has withheld the names of and identifying

information (such as Social Security numbers) about the Special Agents “responsible for

conducting, supervising, and/or maintaining the investigative activities reported in the

documents concerning [the] plaintiff and others,” Def.’s Mem., Argall Decl. ¶ 34, in addition to

local law enforcement employees, id. ¶ 35, and commercial employees who assisted the FBI by

entering data into the ViCAP database, id. ¶ 38. The FBI declarant explains that FBI Special

Agents are not assigned to a particular investigation by choice, and that “[p]ublicity (adverse or

otherwise) regarding any particular investigation to which they have been assigned may

seriously prejudice their effectiveness in conducting other investigations.” Id. ¶ 34.

Withholding their identities under Exemption 7(C), the declarant asserts, protects them “from

unnecessary, unofficial questioning as to the conduct of this or other investigations, whether or

not they are currently employed by the FBI,” and protects them from any hostility which may be

triggered by the disclosure of their identities. Id. The declarant applies this same rationale to

local law enforcement employees, explaining that disclosure of their identities “could subject

them as individuals to unnecessary and unwelcome harassment” or otherwise could make them

“prime target[s] for compromise if their identities were known.” Id. ¶ 35.

20
 Redaction of the names of federal, state and local law enforcement personnel and support

staff under circumstances similar to those described here has routinely been upheld. See Lesar v.

U.S. Dep’t of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980) (finding legitimate interest in

concealing the identities of government officials where disclosure “could subject them to

annoyance or harassment in either their official or private lives”); Pray v. Dep’t of Justice, 902

F. Supp. 1, 3 (D.D.C. 1995) (finding that “animosity or grudges toward special agents” resulting

from release of information outweighed any possible benefit from disclosure), aff’d in relevant

part, 1996 WL 734142 (D.C. Cir. Nov. 20, 1996). In accordance with these rulings, the Court

concludes that the EOUSA and the FBI properly withheld the names of and identifying

information about federal and local law enforcement officers and support personnel under

Exemption 7(C).

ii. Other Third Parties Mentioned in Law Enforcement Records

The EOUSA has withheld “the name[s] and/or identifying information pertaining to

individuals who assisted the government in its investigation and prosecution of [the plaintiff] by

providing information concerning the murder investigation,” Def.’s Mem., Luczynski Decl. ¶ 30,

“the names [and] home telephone numbers of those [individuals] who are only incidentally

mentioned in these records,” id. ¶ 33, as well as “the identities and/or personal and non-public

information concerning third-party individuals in whom federal and/or local law enforcement

agencies had an investigative interest,” id. ¶ 34. Likewise, the FBI withholds the “name,

address, telephone number, date of birth and nickname of a victim of a crime,” Def.’s Mem.,

Argall Decl. ¶ 36, the names of and identifying information about third parties of investigative

interest either to the FBI or to other law enforcement agencies, id. ¶ 37, and, lastly, “the name

21
and title of a commercial employee who cooperated and provided assistance to the FBI by

entering data into the ViCAP database,” id. ¶ 38.

Exemption 7(C) recognizes that the stigma of being associated with any law enforcement

investigation affords broad privacy rights to those who are connected in any way with such an

investigation unless a significant public interest exists for disclosure. Reporters Comm. for

Freedom of the Press, 489 U.S. at 773-775; SafeCard Servs., 926 F.2d at 1205-06. The

exemption “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.”

Dunkelberger v. U.S. Dep’t of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990) (internal quotation

marks omitted). Accordingly, “[t]he D.C. Circuit has consistently held that Exemption 7(C)

protects the privacy interests of all persons mentioned in law enforcement records, including

investigators, suspects, witnesses, and informants.” Fischer v. U.S. Dep’t of Justice, 596 F.

Supp. 2d 34, 47 (D.D.C. 2009) (citing Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661

(D.C. Cir. 2003)).

The plaintiff does not assert, and the Court cannot identify, a public interest of such

significance that it outweighs the privacy interests of the third parties mentioned in the records

responsive to the plaintiff’s FOIA requests. Furthermore, his assertion that “the passage of time

has substantially eroded the records[’] law enforcement exemption status,” Pl.’s Opp’n at 14, is

unavailing, because an individual’s privacy interest does not diminish with the “passage of

time.” Fitzgibbon v. CIA, 911 F.2d 755, 768 (D.C. Cir. 1990).

For all of the above reasons, the Court finds that the DOJ’s decision to withhold the

names of and identifying information about law enforcement officers, support personnel,

22
witnesses, persons of investigative interest, and other third parties whose names happen to

appear in these law enforcement records is proper. See, e.g., King v. U.S. Dep’t of Justice, No.

08-1555, 2010 WL 935420, at *4 (D.D.C. Mar. 17, 2010) (upholding nonproduction of “the

names and other identifying information of third parties, including suspects, co-defendants, and

confidential sources of information”); Sellers v. U.S. Dep’t of Justice, No. 08-0840, 2010 WL

545939, at *7 (D.D.C. Feb. 17, 2010) (withholding the identities of FBI Special Agents who

testified at the plaintiff’s criminal trial held proper); Kurdyukov v. U.S. Coast Guard, 657 F.

Supp. 2d 248, 256 (D.D.C. 2009) (sustaining the withholding of “[t]he names and personal

information of the U.S. Coast Guard crew members, which may include addresses, passport

numbers and other personal data” (internal quotation marks omitted)).

d. Exemption 7(D)

Exemption 7(D) protects from disclosure those records or information compiled for law

enforcement purposes that:

could reasonably be expected to disclose the identity of a confidential
source . . . [who] furnished information on a confidential basis, and,
in the case of a record or information compiled by criminal law
enforcement authority in the course of a criminal investigation. . .,
information furnished by a confidential source.

5 U.S.C. § 552(b)(7)(D). There is no general “presumption that a source is confidential within

the meaning of Exemption 7(D) whenever [a] source provides information [to a law enforcement

agency] in the course of a criminal investigation.” U.S. Dep’t of Justice v. Landano, 508 U.S.

165, 181 (1993). Rather, a source’s confidentiality must be determined on a case-by-case basis,

id. at 179-80, and a presumption of confidentiality arises only in narrowly defined

circumstances, id. at 181 (“For example, when circumstances such as the nature of the crime

23
investigated and the witness’ relation to it support an inference of confidentiality, the

Government is entitled to a presumption.”). Moreover, as the District of Columbia Circuit held,

“[a] source is confidential within the meaning of [E]xemption 7(D) if the source ‘provided

information under an express assurance of confidentiality or in circumstances from which such

an assurance could be reasonably inferred.’” Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir.

1995) (quoting Landano, 508 U.S. at 170-74).

i. Eyewitnesses to the Murder for which the Plaintiff was Convicted

According to the EOUSA it has withheld under Exemption 7(D) “information provided

by eyewitnesses to the murder for which [the plaintiff] was prosecuted” in circumstances under

“which the assurance of confidentiality could be reasonably inferred.” Def.’s Mem., Luczynski

Decl. ¶ 39. These sources are not named, and they appear in the EOUSA records only as “W-1”

and W-2.” Id. ¶ 41. They “had direct contact with the subject of the criminal investigation” and

thus were able to “provide[] details as to their criminal conduct,” in addition to supplying

detailed information about the murder for which the plaintiff has been convicted. Id. The

EOUSA declarant states that these witnesses “would likely become targets of harassment or

other forms of reprisal” if their identities or the information they provided were released. Id. ¶

37. Moreover, he states that disclosure “would likely produce a disastrous impact upon the

ability to ever obtain . . . investigative information again, as it would create a chilling effect upon

the free-flow of information essential to resolve criminal prosecutions.” Id.

Recognizing the “the violence and danger that accompany the cocaine trade,” Mays v.

Drug Enforcement Admin., 234 F.3d 1324, 1329-30 (D.C. Cir. 2000), the District of Columbia

Circuit has found that “a source of information about a conspiracy to distribute cocaine typically

24
faces a sufficient threat of retaliation that the information he provides should be treated as

implicitly confidential,” id. at 1330 (approving the withholding of the identity of a source who

supplied information about a conspiracy to distribute crack and powder cocaine). Similarly,

courts have found that disclosure of the identities of or information provided by confidential

sources is not required in circumstances where the subject of the investigation is known to have

committed serious or violent offenses and where the sources are at risk of retaliation, harassment

or bodily harm. See Williams, 69 F.3d at 1159-60 (concluding that sources who spoke to the FBI

regarding a nationalist organization “suspected . . . of committing . . . rebellion or insurrection,

seditious conspiracy, and advocating the overthrow of the government,” and had demonstrated

its “willingness to use violence against its enemies,” did so under an implicit assurance of

confidentiality); Shores v. FBI, 185 F. Supp. 2d 77, 84 (D.D.C. 2002) (approving the

withholding of the identities of and identifying information about three cooperating witnesses

who had knowledge of the murder for which plaintiff was convicted). It is equally reasonable in

this case to conclude that W-1 and W-2 provided information to law enforcement with an

expectation that their identities would not be disclosed. This information is therefore properly

withheld under Exemption 7(D).

ii. Confidential Source Material in the ViCAP File

The FBI withholds certain “confidential source material contained in the ViCAP file, as

well as in a reference file concerning a Racketeering Enterprise Investigation (“REI”) of gang

activity.” Def.’s Mem., Argall Decl. ¶ 40. Here, the FBI declarant explains that a local law

enforcement agency supplied information to ViCAP under an express assurance of

confidentiality, as is underscored by the FBI’s Rules of Behavior for the ViCAP Web. Id. These

25
rules clearly state that the ViCAP Web database is a confidential system, the unauthorized access

to which is prohibited. Id. Moreover, the declarant states that the FBI “solicits and receives

information regularly from state, local, and foreign agencies and authorities,” and that

cooperation from these identities depends on a “mutual understanding that the information

provided by [these sources] will be held in confidence by the FBI, and not released pursuant to

FOIA and Privacy Act requests.” Id.

Where a law enforcement agency relies on express assurances of confidentiality to justify

its decision to withhold information under Exemption 7(D), it must offer “probative evidence

that the source did in fact receive an express grant of confidentiality.” Campbell v. U.S. Dep’t

of Justice, 164 F.3d 20, 34 (D.C. Cir. 1998) (quoting Davin v. U.S. 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. In addition to individual sources, a law enforcement agency itself

may be a confidential source for purposes of Exemption 7(D). See, e.g., Founding Church of

Scientology of Washington, D.C., Inc. v. Levi, 579 F. Supp. 1060, 1063 (D.D.C. 1982)

(approving the withholding from law enforcement records the identities of state, local and

foreign law enforcement agencies), aff’d, 721 F.2d 828 (D.C. Cir. 1983); Thomas v. U.S. Dep’t

of Justice, 531 F. Supp. 2d 102, 111 (D.D.C. 2008) (approving the withholding of a report

provided to the EOUSA by the Metropolitan Police Department which stated, “[t]his report is the

property of the Metropolitan Police Department. Neither it nor its contents may be disseminated

to unauthorized personnel.”); Meserve v. U.S. Dep’t of Justice, No. 04-1844, 2006 WL 2366427,

26
at *10 (D.D.C. Aug. 14, 2006) (concluding that the State of Ohio provided information regarding

the plaintiff’s criminal history under an implied assurance of confidentiality); see also Code v.

FBI, No. 95-1892, 1997 WL 150070, at *7 (D.D.C. Mar. 26, 1997) (approving the withholding

under Exemption 7(D) of information provided by local law enforcement authorities to the FBI’s

National Center for the Analysis of Violent Crime as a part of its ViCAP program).

The plaintiff raises no specific objection to the withholding of information under

Exemption 7(D). Accordingly, based on the defendant’s supporting declarations, the Court

concludes that both the EOUSA and the FBI properly have withheld the information described

above under Exemption 7(D).

e. Exemption 7(E)

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

production of such law enforcement records or information . . . would disclose techniques and

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

law enforcement investigations or prosecutions if such disclosure could reasonably be expected

to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Courts have held that information

pertaining to law enforcement techniques and procedures properly is withheld under Exemption

7(E) where disclosure reasonably could lead to circumvention of laws or regulations. See, e.g.,

Morley v. CIA, 453 F. Supp. 2d 137, 157 (D.D.C. 2006) (approving the withholding of

information pertaining to security clearances and background investigations on the ground that

“disclosure of CIA security clearance and investigatory processes would risk circumvention of

those processes in the future”), rev’d on other grounds, 508 F.3d 1108 (D.C. Cir. 2007); Piper v.

U.S. Dep’t of Justice, 294 F. Supp. 2d 16, 30 (D.D.C. 2003) (approving the withholding of

27
polygraph test information on the ground that disclosure “has the potential to allow a cunning

criminal to extrapolate a pattern or method to the FBI’s questioning technique,” and anticipate or

thwart FBI’s strategy); Fisher v. U.S. Dep’t of Justice, 772 F. Supp. 7, 12 (D.D.C. 1991)

(upholding FBI’s decision to withhold information about law enforcement techniques where

disclosure would impair its future effectiveness and, “within the context of the documents at

issue could alert subjects in drug investigations about techniques used to aid the FBI”), aff’d, 968

F.2d 92 (D.C. Cir. 1992). Moreover, as stated previously, under Exemption 2, so-called “high 2”

exempt information encompasses “[p]redominantly internal documents the disclosure of which

would risk circumvention of agency statutes.” Schiller, 964 F.2d at 1207.

Based on Exemptions 2 and 7(E), the FBI has withheld information contained in a

ViCAP file. Def.’s Mem., Argall Decl. ¶¶ 28, 42; see id., Ex. FBI-G at 29-86 (deleted page

information sheets). The FBI’s Critical Incident Response Group, National Center for Analysis

of Violent Crime, Behavior Analysis Unit’s Violent Criminal Apprehension Program (“ViCAP”)

“is a law enforcement oriented behavioral science and data-processing center designed to

provide assistance to local, state, federal and foreign law enforcement agencies investigating

unusual, bizarre, and/or repetitive violent crimes.” Def.’s Mem., Argall Decl. ¶ 28. “ViCAP

collects, collates, and analyzes crimes of violence, specifically murder,” id., and information it

processes “contains detailed administrative, investigative and behavior-oriented data[,]” such as

“modus operandi, crime scene information, and types of trauma inflicted on the victim,” id. ¶ 42.

The FBI declarant states that information in ViCAP “relates solely to the FBI’s internal

practices” Def.s’ Mem., Argall Decl. ¶ 28, and that ViCAP “is utilized for law enforcement

28
investigations,” id. ¶ 42. He asserts that disclosure of information in the ViCAP file would

“reveal the characteristics and data . . . collected and tracked using this system [and therefore]

could allow offenders to circumvent discovery.” Id. ¶ 28; see id. ¶ 42. Thus, if a criminal knew

the specific information collected and the origins of such information, he or she “would then be

able to avoid detection by modifying or avoiding certain behavior/activities connected with

his/her criminal conduct.” Id. ¶ 28. In addition, the declarant explains that “the FBI will use the

same or similar techniques and/or assistance to bring future investigations to successful

conclusions,” id., and that “release of the ViCAP analytical techniques would reduce their

effectiveness,” id. ¶ 42. According to the declarant, ViCAP’s techniques are not well known to

the public. Id.

Despite these representations, the plaintiff argues that the defendant “does [not] even

attempt to make a showing as required by law,” as it fails “to show that the particular law

enforcement technique or procedure is not generally known to the public” and to “describe the

general nature of the techniques[.]” Pl.’s Opp’n at 14. However, absent a showing by the

plaintiff that rebuts the declarant’s assertion that ViCAP’s techniques are not well known to the

public, the Court presumes that the declaration is made in good faith and therefore accepts the

agency’s representation on this point. In addition, the plaintiff’s assertion that the declarant has

not described generally the nature of the ViCAP techniques, id., is meritless, as the declaration

explains the type of data collected and the purpose of collecting this data.

E. Segregability

If a record contains information that is exempt from disclosure, any reasonably

segregable information must be released after deleting the exempt portions, unless the non-

29
exempt portions are inextricably intertwined with exempt portions. 5 U.S.C. § 552(b); see

Stolt-Nielsen Transp. Group, Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008); Trans-

Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1026-27 (D.C. Cir. 1999).

The Court therefore errs if it “simply approve[s] the withholding of an entire document without

entering a finding on segregability, or the lack thereof.” Powell v. U.S. Bureau of Prisons, 927

F.2d 1239, 1242 n.4 (D.C. Cir. 1991) (quoting Church of Scientology v. Dep’t of the Army, 611

F.2d 738, 744 (9th Cir. 1979)).

The plaintiff argues that the DOJ cannot have disclosed all reasonably segregable

material because so few pages have been released and because so much information on these

pages has been redacted. See Pl.’s Opp’n at 16-17. Unless the Court conducts an in camera

inspection of all the documents deemed responsive to his FOIA requests, the plaintiff states that

he “is compelled . . . to [accept] the Defendants’ bald assertions on face value – something [he]

admittedly has a hard time doing after 7-years of the Defendants’ shenanigans.” Id. at 17.

The Court will deny plaintiff’s request for in camera review. Based on a review of the

defendant’s supporting declarations and exhibits, the Court finds that they adequately “specify in

detail which portions of the document[s] are disclosable and which are allegedly exempt.”

Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973).

III. CONCLUSION

For the reasons outlined above, the Court concludes that the FBI and the EOUSA

conducted reasonable and adequate searches for records responsive to the plaintiff’s multiple

FOIA requests, that these components properly have withheld records or portions of records

under Exemptions 2, 7(C), 7(D), and 7(E), and that they have released all reasonably segregable

30
material. In these respects, the defendant’s summary judgment motion is granted. However,

because the defendant has not established that the BOP has fulfilled its obligations under the

FOIA, its motion is denied in part without prejudice. The defendant will be directed to file a

renewed motion for summary judgment based on additional undisputed facts or by presenting

additional legal arguments. An Order accompanies this Memorandum Opinion.

/s/
REGGIE B. WALTON
United States District Judge
DATE: August 26, 2010

31