Clemente v. Federal Bureau of Investigation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ANGELA CLEMENTE,

Plaintiff,
Civil Action No. 08-1252 (BJR)
v.
ORDER GRANTING IN PART AND
FEDERAL BUREAU OF
DENYING IN PART DEFENDANTS’
INVESTIGATION, et al.,
SECOND RENEWED MOTION FOR
SUMMARY JUDGMENT
Defendants.

I. INTRODUCTION

Angela Clemente brings this suit under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, against the Federal Bureau of Investigation, a component of

the U.S. Department of Justice, and other unnamed agencies (collectively, “the FBI”).

Before the Court is Defendants’ Second Renewed Motion for Summary Judgment [Dkt. No.

105]. For the reasons set forth below, the Court GRANTS in part and DENIES in part the FBI’s

motion. 1

II. BACKGROUND

Plaintiff filed this FOIA action against the FBI on July 21, 2008, seeking to obtain an

unredacted copy of the FBI’s file on the late Gregory Scarpa, Sr., a high-ranking Mafia member

who served as an FBI informant. See Clemente v. F.B.I., 741 F. Supp. 2d 64, 71 (D.D.C. 2010).

The parties have been through two rounds of cross motions for summary judgment. See Dkt.

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Plaintiff also seeks relief to file a sur-reply in support of her opposition to Defendants’ Second Renewed
Motion for Summary Judgment. See Dkt. No. 116. The motion is denied because no sur-reply is warranted in this
case. Groobert v. President and Directors of Georgetown College, 219 F. Supp. 2d 1, 13 (D.D.C. 2002) (citing
American Forest & Paper Ass’n v. United States Envtl. Prot. Agency, 1996 WL 509601, at *3 (D.D.C. 1996)) (the
court may permit the filing of a surreply at its discretion).

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Nos. 11, 25-40, 51-52, and 78. After the first round of motions, U.S. District Court Judge Paul L.

Friedman, to whom this case was originally assigned, found that the FBI had conducted an

adequate search for documents responsive to Plaintiff’s FOIA request, but directed the FBI to

supplement its Vaughn index and further instructed the parties to agree on a representative

sample of the documents that were responsive to Plaintiff’s FOIA request. Dkt. No. 40. Plaintiff

moved for reconsideration of Judge Friedman’s order, arguing among other things, that the FBI

did not adequately search for documents responsive to her FOIA request. Dkt. No. 43. Judge

Friedman denied Plaintiff’s motion for reconsideration. Dkt. No. 61.

Thereafter, the parties agreed that the FBI would produce a new Vaughn index of a

representative sample of approximately 192 pages. Dkt. No. 81 at 8. The FBI reprocessed the

sample pages and released further information. Id. The matter was then transferred to this U.S.

District Court Judge on September 1, 2011. Dkt. No. 65. The parties renewed their cross motions

for summary judgment, and on April 23, 2012, this Court once again affirmed that the FBI’s

search for documents related to Plaintiff’s FOIA request was adequate. Dkt. No. 81. However,

this Court also ordered that the non-sample documents be reprocessed in light of the fact that the

FBI released additional information when it reprocessed the sample documents. Id. at 18.

In addition, this Court noted certain deficiencies in the revised Vaughn Index. In order to

correct these deficiencies, this Court instructed the FBI to: (1) release historical references to the

number of FBI informants reporting on Mafia issues and to the dispensation of operations funds;

(2) state “how [the FBI] determined the life status of individuals” and apply the method to the

non-sample documents; (3) provide “individualized and more detailed descriptions” of the

information withheld pursuant to Exemption 7(C); and (4) provide sufficient detail to allow the

Court to determine whether the disclosure of information previously redacted pursuant to

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Exemption 7(E) could reasonably be expected to enable an individual to evade the law. Id. at 17-

18. Lastly, this Court denied Plaintiff’s renewed cross motion for summary judgment without

prejudice. Id. at 19.

In response to the April 23, 2012 order, the FBI reprocessed the entire initial release of

documents (i.e., all of the FBI documents that were responsive to Plaintiff’s FOIA request). Dkt.

No. 84 at 1. The FBI asserts that it reviewed 1,153 pages and on August 1, 2012, released 1,153

pages (with redacted portions) to the Plaintiff. Defendants then filed the present motion, arguing

that the FBI has released all segregable, non-exempt information responsive to Plaintiff’s FOIA

request. Plaintiff opposes the motion and it is now ripe for review.

III. LEGAL STANDARDS

A. The Freedom of Information Act

FOIA was enacted so that citizens could discover “what their government is up to.” U.S.

Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989). “The

basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic

society, needed to check against corruption and to hold the governors accountable to the

governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). FOIA therefore

“seeks to permit access to official information long shielded unnecessarily from public view and

attempts to create a judicially enforceable public right to secure such information from possibly

unwilling official hands.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (quoting EPA

v. Mink, 410 U.S. 73, 80 (1973)). FOIA “is broadly conceived,” Mink, 410 U.S. at 80, and its

“dominant objective” is “disclosure, not secrecy,” U.S. Dep’t of Def. v. FLRA, 510 U.S. 487, 494

(1994) (quoting Rose, 425 U.S. at 361).

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 An agency may withhold information responsive to a FOIA request only if the

information falls within an enumerated statutory exemption. 5 U.S.C. § 552(b). These

“exemptions are ‘explicitly exclusive,’” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151

(1989) (quoting FAA Administrator v. Robertson, 422 U.S. 255, 262 (1975)), and “have been

consistently given a narrow compass,” id. “The agency bears the burden of justifying any

withholding, and the Court reviews the agency claims of exemption de novo.” See Bigwood v.

U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 74 (D.D.C. 2007) (citing 5 U.S.C. §

552(a)(4)(B)). Because the focus of FOIA is “information, not documents . . . an agency cannot

justify withholding an entire document simply by showing that it contains some exempt

material.” Krikorian v. Dep’t of State, 984 F.2d 461, 467 (D.C. Cir. 1993) (citation and internal

quotation marks omitted). Instead, FOIA requires that federal agencies provide to a requester all

non-exempt information that is “reasonably segregable” from, 5 U.S.C. § 552(b)—that is, not

“inextricably intertwined with,” Mead Data Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d

242, 260 (D.C. Cir.1977) (citations and internal quotation marks omitted)—exempt information.

B. Summary Judgment

FOIA cases are typically and appropriately decided on motions for summary judgment.

Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Defenders of Wildlife v. U.S. Border Patrol,

623 F. Supp. 2d 83, 87 (D.D.C. 2009); Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C.

1980). In a FOIA case, an agency is entitled to summary judgment if it can demonstrate that

there are no material facts in dispute as to the adequacy of its search for or production of

responsive records. Nat’l Whistleblower Ctr. v. U.S. Dep’t of Health & Human Servs., 2012 WL

1026725, at *4 (D.D.C. Mar. 28, 2012). An agency must show that any responsive information it

has withheld was either exempt from disclosure under one of the exemptions enumerated in 5

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U.S.C. § 552(b), or else “inextricably intertwined with” exempt information, Mead Data, 566

F.2d at 260 (citations and internal quotation marks omitted). “Because FOIA challenges

necessarily involve situations in which one party (the government) has sole access to the relevant

information, and that same party bears the burden of justifying its disclosure decisions, the courts

. . . require the government to provide as detailed a description as possible—without, of course,

disclosing the privileged material itself—of the material it refuses to disclose.” Oglesby

v. U.S. Dep’t of Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996). This justification is typically

contained in a declaration or affidavit, referred to as a Vaughn index after the case of Vaughn v.

Rosen, 484 F.2d 820 (D.C. Cir. 1973). An agency’s affidavits or declarations are presumed to be

submitted in good faith. See SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir.

1991).

There is no set formula for a Vaughn index, because “the critical elements of the Vaughn

index lie in its function, and not in its form.” Kay v. FCC, 976 F. Supp. 23, 35 (D.D.C. 1997).

The purpose of a Vaughn index is “to permit adequate adversary testing of the agency’s claimed

right to an exemption,” Nat’l Treasury Emps. Union v. U.S.Customs Service, 802 F.2d 525, 527

(D.C. Cir. 1986) (citing Mead Data Central, 566 F.2d at 251), and so the index must contain “an

adequate description of the records” and “a plain statement of the exemptions relied upon to

withhold each record,” Nat’l Treasury Emps. Union, id. at 527 n.9.

IV. ANAYLSIS

The FBI asserts that it has disclosed all responsive, non-exempt information to

Ms. Clemente, and that, as such, it is entitled to judgment as a matter of law. Ms. Clemente

opposes the motion, arguing that: (A) the FBI’s search for documents responsive to her FOIA

request was inadequate; (B) the FBI failed to meet its threshold burden of proof under

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Exemption 7; and (C) even if the FBI met its threshold burden under Exemption 7, it failed to

satisfy its burden under subsections (C), (D), and (E) of Exemption 7. Accordingly, Plaintiff

requests that this Court deny the FBI’s second renewed summary judgment motion, instruct the

FBI to conduct further searches for responsive documents, and permit Plaintiff to conduct

discovery. The Court will address each of Plaintiff’s arguments below.

A. The Adequacy of the FBI’s Search for Responsive Documents

Ms. Clemente urges this Court, pursuant to Federal Rule of Civil Procedure 54(b), to

reconsider the Court’s earlier determination that the FBI’s search for documents responsive to

Plaintiff’s FOIA request was sufficient. As noted earlier in this Order, Plaintiff’s arguments

regarding the adequacy of the FBI’s search have been addressed on three separate occasions—

Judge Friedman addressed the arguments twice, this district court judge once. See Dkt. Nos. 42,

61, and 81. Each time, the Court affirmed that the FBI’s search was adequate because it was

“reasonably calculated to uncover all relevant documents.” Truitt v. Dep’t of State, 897 F.2d 540,

542 (D.C. Cir. 1990).

Here, Plaintiff raises the same arguments that this Court has thrice addressed and

rejected; the Court declines to address those arguments yet again. Black v. Tomlison, 235 F.R.D.

532, 533 (D.D.C. 2006) (internal quotations omitted) (stating motions for reconsideration are not

simply an opportunity to reargue facts and theories upon which a court has already ruled); see

also, Reed v. Islamic Republic of Iran, 242 F.R.D. 125, 129 (D.D.C. 2007). Accordingly,

Plaintiff’s Rule 54(b) motion is denied.

B. The FBI Has Satisfied Its Threshold Burden of Proof under Exemption 7

As discussed above, under FOIA, the FBI may withhold documents responsive to Ms.

Clemente’s FOIA request only if the responsive documents fall within one of the enumerated

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statutory exemptions. See 5 U.S.C. § 522(b). The FBI bears the burden of justifying any

withholding. Bigwood v. U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 74 (D.D.C. 2007).

During the first round of summary judgment motions before Judge Friedman, David M. Hardy,

Section Chief of the Record/Information Dissemination Section of the FBI’s Records

Management Division, submitted a declaration to the Court along with copies of the redacted

documents released to Ms. Clemente, in which he described the various categories of

information withheld as exempt from disclosure. One such category of documents are those that

the FBI asserts are exempt from disclosure pursuant to Exemption 7.

Exemption 7 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. See Dkt. No. 42 at 28 citing 5 U.S.C. § 552(b)(7); see also Fed. Bureau of

Investigation v. Abramson, 456 U.S. 615, 622 (1982). In the first round of summary judgment,

Plaintiff argued that the records in question were not compiled for law enforcement purposes, but

rather, demonstrate that Scarpa and his FBI handler, Lindley DeVecchio, aided and abetted in

illegal activities. Dkt. No. 23-1 at 19. The FBI countered that the records were compiled to

“investigate [Scarpa’s] involvement in the La Costra Nostra [] criminal enterprise, to collect

evidence and/or information from [Scarpa], and [to] document and monitor the actions of

[Scarpa], pursuant to 18 U.S.C. §§ 1961-1968 (RICO).” Dkt. No. 115-1 Sixth Declaration of

David M. Hardy at ¶ 15.

Judge Friedman rejected Plaintiff’s argument. He held that the content of the records is

consistent with the FBI’s assertion that they were created for law enforcement purposes. See Dkt.

No. 42 at 27. Judge Friedman further held that even if the “Court were to assume that the FBI’s

deployment of Scarpa sometimes contravened the law, there is no evidence that the records were

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compiled for any purpose other than that supplied by the FBI: documenting the activities of a

criminal informant. Such documentation advances the FBI’s interest in monitoring the behavior

and interactions of an important source of information and so serves a law enforcement

purpose.” Id. at 27-28. Accordingly, Judge Friedman concluded that the FBI had satisfied its

threshold burden under Exemption 7. This Court agrees with Judge Friedman’s assessment of the

records and will not disturb his decision on this issue.

C. Whether the FBI Satisfied Its Burden under Exemption 7(C)

Having met its threshold burden under Exemption 7 (i.e., that the records were compiled

for law enforcement purposes), the FBI still must establish that the redacted material satisfies

one of the subparts of Exemption 7 (i.e., one of the enumerated harms). One of the subparts on

which the FBI relies is subsection C, which protects from disclosure information in law

enforcement records that “could reasonably be expected to constitute an unwarranted invasion of

privacy.” 5 U.S.C. § 552(b)(7)(C). The FBI claims that five types of information were properly

withheld pursuant to Exemption 7(C): (1) the “names and identifying information of FBI [special

agents]. . . and support employees”; (2) the “names of third parties . . . [who] were of

investigative interest to the FBI”; (3) the “names of third parties who are merely mentioned in

various communications” documented in Mr. Scarpa’s file; (4) “the name and identifying

information concerning local law enforcement personnel from the New York City Police

Department”; and (5) “the names and/or identifying data of individuals who assisted the FBI by

providing information within the records responsive to plaintiff’s request.” 1st Hardy Decl. at ¶¶

42, 45, 48, 51 and 53.

In the first round of summary judgment, Ms. Clemente objected to the FBI’s invocation

of Exemption 7(C), arguing that the FBI had not properly balanced the privacy interests at stake

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against the public interest in disclosure. She argued that “[t]he public interest in disclosure is

overwhelming” because “this is a case which involves violent crimes, including murder,

committed by an FBI Top Echelon informant who was on the FBI payroll when he committed

these crimes and covered them up, and whose handler was aware of these activities.” Dkt. No.

23-1 at 21. Judge Friedman agreed that “the public has a significant interest in learning about any

misuse of criminal informants by the FBI,” but noted that Plaintiff had failed to “explain how

that interest would be advanced by the release of the names and identifying information of all

individuals mentioned in Mr. Scarpa’s file.” Dkt. No. 42 at 31. Nevertheless, Judge Friedman

found that the FBI’s Vaughn index [was] not sufficiently detailed to permit the [P]laintiff to

make her case regarding the public interest in disclosure of information withheld under

Exemption 7(C).” Id. Therefore, Judge Friedman instructed the FBI to provide information as to

the efforts it took to ascertain the life status of the individuals whose information it redacted on

privacy grounds (noting that one’s interest in privacy diminishes after one’s death) and to

provide individualized and more detailed descriptions of the information withheld pursuant to

Exemption 7(C) “[i]n each instance in which it is not clear that from the context that information

[so] redacted … reveals a name or other basic indentifying information,” (noting specifically

pages 404, 418, 703, 744, 924, and 942 of the responsive documents). Id. at 32.

Subsequent to Judge Friedman’s ruling (and subsequent to further prodding from this

district court judge after the parties renewed their cross motions for summary judgment, see dkt.

nos. 51 and 57), the FBI supplemented its Vaughn Index and released further information on the

documents that it had previously withheld pursuant to 7(C). According to the FBI, whenever it

determined that an individual was deceased, the name and/or identifying information that had

been previously redacted was released. On the other hand, when the FBI was unable to find

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evidence of the individual’s life status, it presumed that the individual is alive and continued to

withhold the information pursuant to (7)(C). See Sixth Hardy Decl., ¶ 18. In addition, if the FBI

had date of birth information for an individual and that information showed that the individual

was born more than 100 years ago, the FBI presumed that the individual was dead and released

his or her information (the so called “100-year-rule”).

Therefore, the dispute regarding the FBI’s invocation of Exemption 7(C) has been

dwindled down to this: (1) did the FBI sufficiently attempt to ascertain the life status of the

individuals whose information has not been released, and if so, (2) does the privacy interest of

said individuals outweigh the public interest in disclosure, and (3) did the FBI disclose all

nonexempt, segregable information on Documents 404, 418, 703, 744, 924, and 942. The Court

will address each question in turn.

1. The FBI’s Efforts to Ascertain the Life Status of the Individuals
Identified in the Responsive Documents

As Judge Friedman previously stated, it is well-settled law that an individual’s death

diminishes, but does not eliminate, her privacy interest in the nondisclosure of any information

about her that appears in law enforcement records. See Campbell v. U.S. Dep’t of Justice, 164

F.3d at 33-34; Davis v. Dep’t of Justice, 460 F.3d 92, 98 (D.C. Cir. 2006). Consequently, in

balancing an individual’s privacy interests against any public interest in disclosure, an agency

must typically take “the fact of death . . .into account.” Davis, 460 F.3d at 98. The agency can

only do that if it first “ma[k]e[s] a reasonable effort to ascertain life status.” Id.

Here, the FBI asserts that it took the following steps to ascertain the current life status of

any individual whose name and/or other identifying information was identified in the records

responsive to Plaintiff’s FOIA request:

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 a. For individuals whose names were not connected to an identifiable date of birth
and/or social security number, defendant conducted a search of the FBI’s
Automated Case Support System (“ACS”) in an attempt to locate this personally
identifying information. In cases where defendant was unable to locate an
identifiable date of birth and/or social security number, the FBI withheld the
names under Exemptions 6 and 7(C) because it was unable to determine the
individuals’ life status; and, therefore, those individuals were presumed to be
living;

b. For individuals’ names whose date of birth was available, defendant used the date
of birth to apply the judicially-recognized “100-year-rule,” i.e., if the individual
was born more than 100 years ago, defendant presumed that the individual is dead
and released the name;
c. The FBI conducted a search using an external database called Consolidated Lead
Evaluation and Reporting (“CLEAR”) in order to determine life status of
individuals for whom the FBI had a date of birth and/or social security number,
but did not fit the 100-year rule. CLEAR is a subscription-based investigative
platform designed for and utilized by numerous law enforcement and government
entities, along with other professionals, who need to obtain information about
people and companies;
d. When a date of birth and/or social security number was provided and CLEAR was
unable to provide a life status, defendant conducted a Google search to see if it
could obtain an obituary; and

e. For FBI Special Agents and/or support employees, defendant utilized institutional
knowledge gained from prior FOIA requests or internal records to determine the
individuals’ life status.
Dkt. No. 105-1 Fifth Hardy Decl. at ¶ 6.

The D.C. Circuit has instructed that “[a] court balancing public interests in disclosure

against privacy interests must ... make a reasonable effort to account for the death of a person on

whose behalf the FBI invokes exemption 7(C).” Schrecker v. United States Dep’t. of Justice, 349

F.3d 657, 662 (citing Campbell v. United States Dep’t of Justice, 164 F.3d 20, 33 (D.C. Cir.

1988). “In undertaking the review required by Campbell, a court must assure itself that the

Government has made a reasonable effort to ascertain life status. And the Government’s efforts

must be assessed in light of the accessibility of the relevant information.” Id.; see also Truitt, 897

F.2d at 542 (“The adequacy of an agency’s search is measured by a ‘standard of reasonableness,’

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and is ‘dependent upon the circumstances of the case.’” (footnote and citation omitted)). The

D.C. Circuit has cautioned, however, that it would be inappropriate for a court to mandate “a

bright-line set of steps for an agency to take in this situation. FOIA, requiring as it does both

systemic and case-specific exercises of discretion and administrative judgment and expertise, is

hardly an area in which the courts should attempt to micro manage the executive branch.”

Johnson v. Executive Office for United States Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002).

Here, Plaintiff contends that the FBI’s methods for determining the life status of the

individuals are inadequate. Plaintiff’s criticism of the FBI’s methods are numerous, but her main

objection is that former FBI Assistant Director John P. Mohr’s name does not appear in the

records. Plaintiff is convinced that Assistant Director Mohr “played a critical role” in the

Bureau’s handling of Scarpa, and given that the Assistant Director Mohr was born in 1910, his

name should have been disclosed under the FBI’s “100-year-rule.” In Plaintiff’s view, because

Assistant Director Mohr’s name was not disclosed in the records, “no credence can be placed in

the FBI’s assertions” that the individuals whose names remain “redact[ed] are alive.” Id. at 25.

Plaintiff’s argument is soundly undercut by the FBI’s sworn testimony that Assistant

Director Mohr’s name is not included in the redacted information. See Dkt. No. 115-1 at ¶ 19

Hardy’s Sixth Decl. (stating that out of “an abundance of caution, and to ensure processing

accuracy, the FBI [] conducted a further review of all [of the] processed records released to

Plaintiff to address Plaintiff’s specific concern regarding the alleged redaction of the names John

P. Mohr and Cartha DeLoach 2. These two names are not redacted in the processed records.”).

Unless this Court disregards the FBI’s sworn testimony, something that this Court is not

prepared to do, it must assume that Assistant Director Mohr’s name is not included in the

2
Plaintiff also suggests that the FBI withheld the name of Cartha “Deke” DeLoach, a former FBI employee.
Dkt. No. 112 at 31.

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records. Accordingly, the Court finds that this particular criticism of the FBI’s effort to ascertain

the life status of the individuals identified in the records is unfounded.

However, Plaintiff also objects to the manner in which the FBI searched its Automated

Case Support System (“ACS”) to locate identifiable dates of birth and/or social security numbers

for those individuals for whom such information is not contained in the responsive documents.

She notes that the FBI “does not state whether [it] used aliases or logical buildups and

breakdowns of the name in conducting this search.” Dkt. No. 112 at 25. She also charges that the

FBI “does not indicate whether the search of the ACS employed the Electronic Case File

(“ECF”),” something that Plaintiff alleges “would presumably be far more effective in

determining life status.” Id. Plaintiff also points out that the FBI does “not mention using the

Social Security Death Index (“SSDI”),” an index that she claims “is most likely to be effective in

determining whether someone has died.” Id. at 26. Lastly, Plaintiff objects to the manner in

which the FBI conducted its search on the Consolidated Lead Evaluation and Reporting

(“CLEAR”) database and Google. Id.

The FBI fails to address these remaining objections in any manner whatsoever. Without

input from the Government, this Court is unable to ascertain the validity of Plaintiff’s concerns,

nor determine, as a matter of law, that the FBI “has made a reasonable effort to account for the

death of a person on whose behalf the FBI invokes exemption 7(C).” Schrecker, 349 F.3d at 662

(quoting Campbell, 164 F.3d at 33). Accordingly, the FBI is instructed to supplement its Vaughn

Index to address these concerns.

2. Disclosure of Identifying Information

The D.C. Circuit has long recognized that “the mention of an individual’s name in a law

enforcement file will engender comment and speculation and carries a stigmatizing connotation.”

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Schrecker, 349 F.3d at 666 (quoting Fitzgibbon v. Cent. Intelligence Agency, 911 F.2d 755, 767

(D.C. Cir. 1990)). “Therefore, persons involved in law enforcement investigations—witnesses,

informants, and the investigating agents—‘have a substantial interest in seeing that their

participation remains secret.’” Id. (quoting Senate of the Commonwealth of Puerto Rico, 823

F.2d at 588). Accordingly, this Court finds that the individuals whose identifying information is

redacted from the documents that are responsive to Plaintiff’s FOIA request have a substantial

interest in keeping their information private. However, as noted above, the FBI must address

Plaintiff’s concerns regarding its attempt to ascertain the life status of these individuals. While

this Court finds that these individuals have a substantial privacy interest here, such an interest

may be diminished if the individuals are deceased. Campbell, 164 F.3d at 33-34; Summers v.

Dep’t of Justice, 140 F.3d 1077, 1084-85 (D.C. Cir. 1998) (Silberman, J., concurring). The Court

is unable to appropriately balance the privacy interest at stake against the public interest in

disclosure until this Court knows the life status of the affected individuals.

3. Documents 404, 418, 703, 744, 924, and 942

With respect to the FBI’s invocation of Exemption 7(C), Judge Freidman also instructed

the FBI to provide “individualized and more detailed descriptions” of the large portions of text

that had been redacted in responsive Document 404, 418, 703, 744, 924, and 942 pursuant to

Exemption 7(C). This Court again instructed the FBI to provide such information when it failed

to so in response to Judge Friedman’s order. The FBI finally responded, releasing some

additional material from five of the six cited pages, and releasing all of the information on the

sixth page (Document 942). The Court will address the parties’ arguments with respect to each of

the five documents on which the FBI continues to withhold information pursuant to Exemption

7(C):

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 a. Document 404

The FBI avers that it re-processed this document and “released much of the information

previously withheld.” Fifth Hardy Decl. at ¶ 8(a). It claims that the only remaining redactions

“relate to the names of third parties who are still living and continue to maintain a privacy

interest.” Id. Plaintiff argues that the remaining redacted information must be released because

the FBI has not met its threshold burden of establishing that the material was compiled for law

enforcement purposes. The Court has already rejected this argument and will not address it again

here. See Section IV. B. above. Plaintiff also argues that the withheld information appears to

already be available to the public as it involves the arrest of three men who made public

appearances in a legal proceeding. Therefore, Plaintiff argues, there is no basis for a privacy

interest. Plaintiff misses the point of redacting this information. The redaction was not made to

protect the fact that these individuals were arrested and later appeared in court, the redaction was

made to protect the privacy interest of third parties who have some sort of relationship with the

FBI. It is the fact of this relationship that is being protected. Accordingly, this Court finds that

the third parties whose information is redacted from Document 404 have a substantial interest in

keeping the information private. However, as noted above, the FBI must address Plaintiff’s

concerns regarding its attempt to ascertain the life status of these individuals. While this Court

finds that these individuals have a substantial privacy interest here, such an interest may be

diminished if the individuals are deceased. Campbell, 164 F.3d at 33-34.

b. Document 418

The FBI claims that the only information that remains redacted on this document is the

“names of an FBI support employee and a third party who are still living and continue to

maintain a privacy interest.” Fifth Hardy Decl. at ¶ 8(b). The Plaintiff does not object to the

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FBI’s redaction of the “third party’s” identifying information in this document. See Dkt. No. 112

at 28. Therefore, this redaction will remain in effect. However, Plaintiff does challenge the

redaction of the identifying information associated with the FBI employee, arguing that as a FBI

employee, s/he has a diminished privacy expectation. Given the facts of this particular FOIA

request—namely that Plaintiff implicates FBI agents in wrongdoing and that the document in

question dates back to 1965—this Court finds that the public’s interest in disclosure outweighs

the FBI agent’s privacy interest. The FBI shall disclose this information.

c. Document 703

The FBI continues to withhold all of the information on this document pursuant to

Exemption 7(C), claiming that “it relates to a particular individual that may have been

cooperating with the authorities and thus retains a significant privacy interest.” Fifth Hardy Decl.

at ¶ 8(c). Plaintiff counters that the FBI’s “may have been” assertion establishes that its basis for

invoking Exemption 7(C) is “sheer speculation.” Dkt. No. 112 at 29. In addition, Plaintiff

complains that the FBI redacted “five or six lines in the penultimate paragraph of this

document.” Id. According to Plaintiff, “[c]learly, this amount of material includes more than just

a name and basic identifying information, yet the FBI has failed to provide any description of the

nature of the withheld material.” Id. Plaintiff’s concerns regarding the FBI’s redaction on this

document are valid and, once again, the FBI has failed to address her arguments. Accordingly,

the FBI is instructed to supplement its Vaughn Index to address Plaintiff’s arguments.

d. Document 744

The FBI continues to withhold all of the information it previously redacted on this

document, stating “it relates to a relationship in which the third party who is being protected was

involved. Additionally, there is personally-identifying information about the other person

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involved in the relationship. Further segregation of this material cannot reasonably be

accomplished without triggering an unwarranted invasion of privacy.” Fifth Hardy Decl. at ¶

8(d). The Court finds the FBI’s claim unpersuasive. The sentence preceding the large block of

redaction states: “Informant advised on 1/7/71, regarding ________ the following story:” The

following redacted section, where presumably the story is related, takes up nearly two-thirds of

the page, suggesting that the redacted section contains more information than simply names and

other identifying information. The FBI does not address Plaintiff’s contention that further non-

exempt information can be segregated from the protected information. Accordingly, the Court

instructs the FBI to re-examine Document 744 to determine whether more information may be

disclosed, and if it determines that further information may not be disclosed without revealing

identifying information, explain why that is the case. In addition, given that the events of the

story took place sometime before at least January 1971, suggesting that the individuals involved

in the story may be dead, the FBI is further instructed to confirm the life status of the

individual(s) who are the subject of the story in accordance with the Court’s instructions set forth

above.

e. Document 924

The FBI continues to withhold all of the previously withheld information contained on

Document 924, claiming that “it relates to the job information of the individual who is being

protected.” Fifth Hardy Decl. at ¶ 8(f). Plaintiff counters that there are few “jobs” that are so

unique that the job cannot be described without revealing a particular person connected to it. The

Court disagrees with Plaintiff. In this context, where the information relates to individuals who

are associated with the Mafia, disclosing the job could very well reveal the identity of the

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individual. Therefore, the Court finds that the FBI has satisfied its burden under Exemption 7(C)

and the information shall remain redacted.

D. The FBI Has Satisfied Its Burden of Proof under Exemption 7(D)

Next, the FBI avers that it is entitled to withhold certain information pursuant to

subsection D of Exemption 7. Exemption 7(D) protects from disclosure 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 a 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). A confidential source may be an individual, such as a private citizen or

paid informant, or it may be a state, local, or foreign law enforcement agency. Zavala v. Drug

Enforcement Admin., 667 F. Supp. 2d 85, 101 (D.D.C. 2009); Lesar, 636 F.2d at 491. There is no

presumption that a source is confidential for purposes of Exemption 7(D) solely because the

source provides information to a law enforcement agency in the course of a criminal

investigation. See U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 181 (1993). Rather,

a source’s confidentiality is determined on a case-by-case basis. Id. at 179-80. “A source is

confidential within the meaning of 7(D) if the source provided information under an express

assurance of confidentiality or in circumstances from which such an assurance could reasonably

be inferred.” Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (citing Landano, 508 U.S. at

170-74).

The FBI withheld the following categories of information pursuant to Exemption 7(D):

(1) the symbol numbers of confidential sources; (2) the file numbers of confidential sources; (3)

“information provided by source symbol numbered informants”; and (4) the “names and

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information of third parties who were interviewed . . . under an implied grant of confidentiality.”

1st Hardy Decl. at ¶¶ 56, 57, 60 and 63. Ms. Clemente argues that the FBI has failed to

demonstrate that the sources in question provided information under an express or implied grant

of confidentiality, as required by Landano.

Plaintiff raised this identical argument in the parties’ first round of summary judgment,

and Judge Friedman soundly rejected it: “As to ‘source symbol numbered informants,’ Mr.

Hardy explains in his declaration that it is the FBI’s practice to assign source symbols to

informants only if those individuals ‘report information to the FBI on a regular basis pursuant to

an ‘express’ grant of confidentiality.’ This averment is sufficient to demonstrate that those

informants qualify as ‘confidential source[s]’ within the meaning of the FOIA.” Dkt. No. 42 at

33 (citing Amuso v. U.S. Dep’t of Justice, 600 F. Supp. 2d 78, 99 (D.D.C. 2009) (informants

assigned a source code operate under an express grant of confidentiality and so are protected by

Exemption 7(D)). Judge Friedman further held:

Informants to whom no source code was assigned but who
supplied information to the FBI regarding the Mafia are also
protected confidential sources. “[W]hatever his relation to the
crime [about which he provides information], an informant is at
risk” — and hence, entitled to an implied grant of confidentiality
— “to the extent the criminal enterprise he exposes is of a type
inclined toward violent retaliation.” It is difficult to conceive of a
“criminal enterprise” known to be more “inclined toward violent
retaliation” than the Mafia. Individuals who provide information
on the Mafia to the FBI therefore are to be considered confidential
sources. Ms. Clemente objects that the FBI has not demonstrated
that the sources in question here were reporting on any particular
“‘crime’ . . . which would warrant an implied promise of
confidentiality.” But the Mafia is an organization formed for the
purpose of coordinating and committing crimes. Any information
furnished to the FBI about the organization could aid in the
detection and prosecution of crime — and lead to retaliation
against the informant. Given the nature of the criminal enterprise
in question, there is no need for the FBI to identify specific crimes
about which particular informants reported.

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Id. at 34 (internal citations omitted). This Court agrees with Judge Friedman’s sound analysis

and will not disturb it. Accordingly, the FBI is entitled, pursuant to Exemption 7(D), to withhold

information provided by “source symbol numbered informants” and the names and information

of third parties who were interviewed under an implied grant of confidentiality. 3

E. The FBI Met Its Burden under Exemption 7(E)

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

enforcement purposes, but only 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); see Long v. United States Dep’t of Justice, 450 F. Supp. 2d 42, 79 (D.D.C.

2006). The FBI cited this exemption in withholding two categories of information:

(1) information describing “techniques and procedures used in law enforcement investigations

regarding the handling of confidential informants,” and (2) “the number of current informants

reporting on [Mafia] issues” and other “logistical details of an FBI undercover operation.” 1st

Hardy Decl. at ¶¶ 66 and 68.

In rejecting the FBI’s first motion for summary judgment on this issue, Judge Friedman

held that the FBI’s Vaughn Index was too “vaguely worded” to justify withholding information

describing “law enforcement techniques” and “logistical details” of FBI undercover operations.

Dkt. No. 42 at 35. Rather, he ruled, the FBI “must provide evidence from which the Court can

3
The FBI also withheld the symbol and file numbers of confidential sources pursuant to Exemption 7(D).
However, Judge Friedman ruled that such information was properly withheld pursuant to Exemption 2, something
Plaintiff does not challenge. See Dkt. No. 42 at 33. Therefore, this Court does not need to address whether this
information is protected by Exemption 7(D).

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deduce something of the nature of the techniques in question,” id, before the Court could

conclude that “such disclosures could reasonably be expected to risk circumvention of the law,”

5 U.S.C. § 552(b)(7)(E). This district court judge noted similar inadequacies in the FBI’s update

Vaughn Index when the Bureau renewed its motion for summary judgment, noting that the FBI

still had not “provided enough detail for the Court to determine whether the disclosure of the

information redacted pursuant to Exemption 7(E) could reasonably be expected to enable an

individual to evade the law. Dkt. No. 81 at 18 (quoting 5 U.S.C. § 552(b)(7)(E)).

In his fifth declaration, Mr. Hardy finally provides further information. Dkt. No. 105 at ¶

11. He states that the nature of the confidential informant and undercover operation information

that the FBI is withholding pursuant to Exemption 7(E) includes:

(i) detailed discussions of an interrogation technique to a source
while in a public setting to avoid suspicion and to provoke certain
reactions and/or actions from targets; (ii) discussions of pre- and
post-informant meeting arrangements; discussions of techniques
dealing with the planning and logistical details involved in setting
up these meetings to ensure the source and all parties involved had
adequate security and to avoid suspicion; (iii) certain techniques
employed by agents when communicating with informants to
prevent suspicion and detection of informants; (iv) use of specific
equipment in surveillance and undercover operations and the way
it was employed to disguise the surveillance; (v) instructions given
to an informant as to a specific course of action in order to provoke
certain reactions from targets; (vi) and specific investigative
techniques used to conceal devices used in the investigation to
gather information.

Id. at ¶ 11. The FBI avers that “[r]eleasing the details of these specific law enforcement

techniques and procedures in the context of these records will provide criminals with a vivid

picture of the context and circumstances in which a specific technique is employed, what actions

and/or circumstances would trigger the use of specific techniques, the reasoning behind the use

of the techniques, and specific information about the implementation of the techniques.” Id. The

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FBI further asserts that disclosure of this information may “aid individuals in circumventing the

law by promoting the invention and implementation of countermeasures, development of

methods to more effectively cover their criminal activities thus avoiding detection, adjustment of

behavior to mislead investigations, concealment of evidence, and prevention of future infiltration

of informants into criminal organizations….disclosure…[could] divert FBI investigative

methods from intended targets, severely hamper the ability to effectively investigate and

prosecute criminals, and endanger the life and/or physical integrity of informants.” Id.

In order for the FBI to successfully invoke the “techniques and procedures” prong of

7(E), it must demonstrate that its withholdings meet three basic requirements. American

Immigration Council v. U.S. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 245 (D.D.C. 2013).

First, the FBI must show that the documents were in fact “compiled for law enforcement

purposes” and not for some other reason. Id. Second, it must show that the records contain law-

enforcement techniques and procedures that are “generally unknown to the public.” Id. (quoting

Nat’l Whistleblower Ctr. v. Dep’t of Health & Human Servs., 849 F.Supp.2d 13, 36

(D.D.C.2012)). Finally, the FBI must show that disclosure “could reasonably be expected to risk

circumvention of the law.” Id. This Court has already determined that documents were compiled

for law enforcement purposes. See Section IV. B. above. Therefore, the Court will turn to the

two remaining requirements.

Plaintiff argues that the FBI is unable to satisfy the remaining two requirements because,

in her view, not only are the techniques and procedures described in the documents publicly

known, they are outdated. See Dkt. No. 112 at 41 (“The technology of wiretaps and 3x5 audio

tapes is gone…typewriters once used to conceal a recording device…are gone…the Mafia

[members] who intersected with Scarpa are largely dead or retired[, and] [t]he buildings and

22
meeting locations which existed then may no longer exist now or only in an altered state due to

wear and tear, damage or destruction by hurricanes, etc.”).

The FBI counters that: “the techniques employed by confidential informants and their

handlers [during the time that Scarpa was an FBI informant] are still effectively used by

informants and their handlers in current investigations.” Id. Although the FBI does not directly

state that the techniques are not publicly known, the Court infers that they are not, otherwise the

techniques could not be “effectively used” by the FBI in “current investigations.” This is

sufficient to satisfy the FBI’s burden of proof under Exemption 7(E). See, e.g., American

Immigration Council, 950 F. Supp. 2d at 247 (“The Court is not expecting such full disclosures

as to defeat the purpose of the [7(E)] exemption,” but the government must at least provide “an

explanation of why the technique or procedure is not generally known to the public.”).

Accordingly, the FBI’s redactions were appropriate.

IV. CONCLUSION

Based on the foregoing, the Court HEREBY rules as follows:

1. Defendants’ Second Renewed Motion for Summary Judgment [Dkt. No. 105] is

GRANTED in part and DENIED in part:

a. The FBI’s search for documents responsive to Plaintiff’s FOIA request

was adequate. This issue is not to be raised again by Plaintiff in this Court;

b. The FBI satisfied its threshold burden under Exemption 7 of establishing

that the documents responsive to Plaintiff’s FOIA request were compiled for law enforcement

purposes. This issue is not to be raised again by Plaintiff in this Court;

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 c. The FBI is instructed to supplement its Vaughn Index to address the

arguments raised by Plaintiff regarding the adequacy of its attempt to ascertain the life status of

the individuals who are identified in the responsive documents;

d. The FBI shall supplement its Vaughn Index regarding the life status of the

individual(s) addressed on Document No. 404;

e. The FBI shall release the information redacted on Document No. 418;

f. The FBI is instructed to supplement its Vaughn Index regarding the life

status of the individual(s) whose identifying information is contained on Document Nos. 703 and

744. In addition, the FBI shall address the arguments raised by Plaintiff with regard to these two

documents. Any failure to address Plaintiff’s arguments will be deemed a waiver and the Court

will order that the information be released;

g. The FBI has satisfied its burden under Exemption 7(C) with respect to

Document No. 924. The information shall remain redacted;

h. The FBI has satisfied its burden under Exemption 7(D) and it entitled to

withhold the information redacted pursuant to that exemption. Plaintiff shall not raise this issue

again in this Court;

i. The FBI has satisfied its burden under Exemption 7(E) and is entitled to

withhold the information redacted pursuant to that exemption;

j. The FBI shall file its supplemented Vaughn Index within thirty (30) days

of the date of this order; and

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 2. It is FURTHER ORDERED that Plaintiff’s motion for leave to file a sur-reply

[Dkt. No. 116] is DENIED. In addition, Plaintiff’s request to conduct discovery is DENIED.

Dated this 18th day of 2014.

A
Barbara Jacobs Rothstein
U.S. District Court Judge

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