United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2012 Decided January 4, 2013
No. 11-5089
BENNY LEE HODGE,
APPELLANT
v.
FEDERAL BUREAU OF INVESTIGATION AND UNITED STATES
DEPARTMENT OF JUSTICE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00403)
Elizabeth Anne Cassady argued the cause for appellant.
On the brief were Margaret K. Pfeiffer and Mary-Louise M.
Huth.
Jeremy S. Simon, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
Before: ROGERS and KAVANAUGH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: Benny Lee Hodge was
convicted in Kentucky state court of three murders, and he
was sentenced to death. The murders occurred during the
summer of 1985. Hodge’s conviction and sentence have been
affirmed on appeal in state court and in state and federal
habeas proceedings. See Hodge v. Commonwealth, 2011 WL
3805960 (2011) (unpublished opinion); Hodge v. Haeberlin,
579 F.3d 627 (6th Cir. 2009); Hodge v. Commonwealth, 116
S.W.3d 463 (Ky. 2003); Hodge v. Commonwealth, 17 S.W.3d
824 (Ky. 2000); Epperson v. Commonwealth, 809 S.W.2d 835
(Ky. 1990).
The FBI participated in the initial investigation because
Hodge had impersonated an FBI agent during one of the
murders and Hodge had fled across state lines with $1.9
million stolen from one victim. In 2002, while on death row
in Kentucky, Hodge submitted a FOIA request to the FBI
seeking “a complete and thorough search of all filing systems
and locations for all records” that the FBI had created during
its investigation of him. J.A. 28-29. In response, the FBI
initially gathered and reviewed 569 pages of potentially
responsive documents. The FBI released 361 pages of
documents to Hodge and claimed exemptions over the
remaining documents.
Dissatisfied with the FBI’s production, Hodge filed suit.
After suit was filed, the FBI conducted additional searches.
In sum, it found more than 6,000 pages of potentially
responsive material, and it ultimately released 1,762 pages of
additional documents to Hodge. As relevant here, the FBI
asserted FOIA Exemptions 3, 7(C), and 7(D) with respect to
the remaining documents.
3
The District Court granted the FBI summary judgment,
ruling that the FBI had released all non-exempt documents as
required by FOIA; that the FBI performed an adequate search;
and that the FBI correctly applied FOIA Exemptions 3, 7(C),
and 7(D). We review the District Court’s grant of summary
judgment de novo. See Juarez v. Dept. of Justice, 518 F.3d
54, 58 (D.C. Cir. 2008). We affirm.
***
First, Hodge claims that the FBI improperly withheld
certain documents that the FBI had released in a separate
FOIA matter to one of his murder accomplices. According to
Hodge, the FBI’s release of 125 unredacted pages to his
accomplice proves that the FBI did not give him all of the
documents to which he was entitled. The fundamental flaw in
Hodge’s chain of reasoning is the premise: In fact, Hodge’s
accomplice did not receive those documents under FOIA.
There may have been a genuine dispute on this point at a
previous stage of the litigation, but while this appeal was
pending, Hodge learned of 450 pages of redacted documents
released to his accomplice under FOIA. This strongly
suggests, as Hodge himself acknowledged, that the original
125-page release was made pursuant to criminal discovery,
not a FOIA request. Therefore, we reject the argument that
the FBI improperly withheld the 125 pages. 1
1
Hodge’s counsel stated at oral argument that Hodge was not
“entirely conceding” that the 125-page report was not a FOIA
release. Oral Arg. Tr. 4. But Hodge’s briefs acknowledge that the
information he has received since the grant of summary judgment
suggests that the FBI’s characterization of that report was correct.
See Appellant Br. 7. We interpret Hodge’s position to be an
effective concession that there is no genuine issue of material fact
as to the nature of these documents, so we treat the issue as waived.
4
Second, Hodge argues that the FBI’s search for
responsive documents was inadequate. Hodge points out that
the FBI found additional responsive documents when it
conducted new searches after this suit was filed. According
to Hodge, the FBI therefore cannot meet its burden of
“show[ing] beyond material doubt . . . that it has conducted a
search reasonably calculated to uncover all relevant
documents.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir.
2007) (citation and internal quotation marks omitted).
In general, the adequacy of a search is “determined not
by the fruits of the search, but by the appropriateness of [its]
methods.” Iturralde v. Comptroller of the Currency, 315 F.3d
311, 315 (D.C. Cir. 2003) (citation omitted). To be sure, we
have acknowledged that the “discovery of additional
documents is more probative that the search was not thorough
than if no other documents were found to exist.” Goland v.
CIA, 607 F.2d 339, 370 (D.C. 1979) (per curiam); see
Krikorian v. Dept. of State, 984 F.2d 461, 468 (D.C. Cir.
1993). But by the time a court considers the matter, it does
not matter that an agency’s initial search failed to uncover
certain responsive documents so long as subsequent searches
captured them. After all, a requester’s argument about the
alleged inadequacy of a search is necessarily an argument for
forward-looking relief. Therefore, what matters once the
agency has fulfilled its burden under FOIA of conducting
“reasonably calculated” searches is whether the requester can
identify any additional searches that must be conducted.
Here, because the sworn declarations from the FBI
indicate that it conducted “reasonably calculated” searches,
the burden is on Hodge to identify specific additional places
the agency should now search. Compare Iturralde, 315 F.3d
at 315 (ruling for agency because requester did not claim
5
agency failed to search particular offices or files), with
Valencia-Lucena v. Coast Guard, 180 F.3d 321, 326-27 (D.C.
Cir. 1999) (ruling against agency because the agency failed to
search another location that would likely have contained
responsive documents). But Hodge has not identified any
specific additional searches that he believes the FBI should
have conducted. Hodge asserts that the FBI may possess
additional responsive documents, but he offers no basis for
concluding that those documents might exist. As we have
said before, “[m]ere speculation that as yet uncovered
documents may exist does not undermine the finding that the
agency conducted a reasonable search.” SafeCard Servs., Inc.
v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). Therefore, we
reject Hodge’s complaint about the alleged inadequacy of the
search.
Third, Hodge contends that the FBI improperly asserted
Exemption 3, Exemption 7(C), and Exemption 7(D) to
withhold various documents.
Exemption 3 covers information that is protected from
disclosure by another statute. See 5 U.S.C. § 552(b)(3). In
this case, the FBI withheld information that was related to
grand jury proceedings and protected by Rule 6(e) of the
Federal Rules of Criminal Procedure. Rule 6(e) applies if the
disclosed material would “tend to reveal some secret aspect of
the grand jury’s investigation,” including “the identities of
witnesses or jurors, the substance of testimony, the strategy or
direction of the investigation,” or “the deliberations or
questions of jurors.” Senate of the Commonwealth of Puerto
Rico v. Dept. of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987)
(citations and internal quotation marks omitted). Here, the
FBI explained that the relevant material “documents the
identities of individuals who were either the recipients of a
Federal Grand Jury Subpoena and/or testified before a Federal
6
Grand Jury.” J.A. 46. Hodge does not contest the accuracy of
this claim. Because the FBI’s explanation shows that the
material is covered by Rule 6(e), the material is in turn
covered by FOIA Exemption 3.
Exemption 7(C) applies to “records or information
compiled for law enforcement purposes,” if disclosure “could
reasonably be expected to constitute an unwarranted invasion
of personal privacy.” 5 U.S.C. § 552(b)(7)(C). In this case,
the FBI asserted Exemption 7(C) to protect private
information of various investigators, witnesses, informants,
and suspects. Individuals who fall into these groups have a
cognizable privacy interest under the exemption. See
Schrecker v. Dept. of Justice, 349 F.3d 657, 661 (D.C. Cir.
2003). Moreover, we have recognized that private citizens –
such as witnesses, informants, and suspects – have
particularly strong privacy interests. Martin v. Dept. of
Justice, 488 F.3d 446, 457 (D.C. Cir. 2007). As the Supreme
Court has explained, the “disclosure of records regarding
private citizens, identifiable by name, is not what the framers
of the FOIA had in mind.” Dept. of Justice v. Reporters
Committee for Freedom of the Press, 489 U.S. 749, 765
(1989).
In response, Hodge claims that there is a public interest in
disclosure of this material because it could reveal government
misconduct. To establish such a public interest and thereby
trigger the Exemption 7(C) balancing of public and private
interests, the requester “must produce evidence that would
warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred.” National
Archives & Records Admin. v. Favish, 541 U.S. 157, 174
(2004). Hodge has not offered such evidence, however, so we
uphold the FBI’s assertion of Exemption 7(C).
7
Exemption 7(D) protects records compiled by law
enforcement during the course of an investigation if
“producing the records ‘could reasonably be expected to
disclose the identity of a confidential source’ or ‘information
furnished’ by such a source.” Roth v. Dept. of Justice, 642
F.3d 1161, 1184 (D.C. Cir. 2011) (quoting 5
U.S.C. § 552(b)(7)(D)). The FBI is not entitled to a blanket
presumption that all witnesses in a criminal investigation
provided information with an implicit understanding of
confidentiality. Instead, the FBI must point to “more
narrowly defined circumstances” suggesting that a witness’s
identity was expected to be kept confidential. Dept. of Justice
v. Landano, 508 U.S. 165, 179 (1993).
When a law enforcement agent provides express
assurances of confidentiality to a witness, the issue is simple
enough: The agency must present “probative evidence that
the source . . . receive[d] an express grant of confidentiality.”
Campbell v. Dept. of Justice, 164 F.3d 20, 34 (D.C. Cir. 1998)
(citation and internal quotation marks omitted). Here, the FBI
explained in a sworn declaration referencing witness
interview documents marked “protect” or “protect identity”
that two of the witnesses at issue were expressly promised
confidentiality. J.A. 63; see Billington v. Dept. of Justice, 233
F.3d 581, 585 (D.C. Cir. 2000). The FBI has readily satisfied
Exemption 7(D) for those two witnesses.
For a few other witnesses at issue in this case, the FBI
argues that there were implicit indications of confidentiality.
The Supreme Court has recognized several factors as relevant
in determining whether a witness provided information under
an implicit assurance of confidentiality, including the
“character of the crime at issue.” Landano, 508 U.S. at 179.
Following Landano, we have recognized that the character of
the crime may support an inference that a witness provided
8
information on a confidential basis, particularly if the criminal
activity involved is “of a type inclined toward violent
retaliation.” Mays v. DEA, 234 F.3d 1324, 1330-31 (D.C. Cir.
2000).
In this case, the FBI has explained, again in a sworn
declaration, how disclosing the identities of the witnesses in
question “could have disastrous consequences” and could
“subject them to violent reprisals.” J.A. 60. Given the
vicious nature of the crimes and the explanation offered in the
FBI’s affidavits, we conclude that the witnesses who provided
the relevant information about Hodge’s involvement in the
murders would have expected that their identities remain
confidential. Therefore, under the circumstances of this case,
we sustain the FBI’s assertion of Exemption 7(D).
Although the FBI has properly applied Exemption 3,
Exemption 7(C), and Exemption 7(D), that does not yet end
the matter. Hodge contends that the District Court should
have reviewed the withheld documents in camera to review
the claimed exempt material. But our case law has rejected
the argument that district courts are required to conduct in
camera review in FOIA cases. See Stolt-Nielsen
Transportation Group, Ltd. v. United States, 534 F.3d 728,
734-35 (D.C. Cir. 2008) (district courts have discretion to rely
on affidavits or conduct in camera review to decide whether
government has released all reasonably segregable, non-
exempt material); Krikorian, 984 F.2d at 466-67 (same).
Hodge relatedly argues that the FBI failed to provide him with
all information that is “reasonably segregable” from exempted
material. 5 U.S.C. § 552(b). An “agency cannot justify
withholding an entire document simply by showing that it
contains some exempt material.” Stolt-Nielsen
Transportation Group., 534 F.3d at 734 (citation and internal
quotation marks omitted). In determining whether the FBI
9
has met this obligation, it is “entitled to a presumption that [it]
complied with the obligation to disclose reasonably
segregable material.” Sussman v. U.S. Marshals Service, 494
F.3d 1106, 1117 (D.C. Cir. 2007). Hodge has not presented
sufficient evidence to rebut that presumption. He identifies
three documents that were released to him as part of the FBI’s
initial response to his search and then released to him a
second time as the FBI continued to process his search. The
documents contained fewer redactions when released to him a
second time; according to Hodge, that fact demonstrates that
the FBI is improperly withholding material. We disagree. As
is the case with searches, what matters is that, in the end,
Hodge received the material to which he was entitled and has
not shown a basis to question the remaining redactions.
Hodge identifies an additional document that he claims
contained excessive redactions. The District Court compared
the document, including the FBI’s annotations specifying
which exemptions the FBI was applying, to the FBI’s sworn
declarations explaining why the FBI’s claimed exemptions
were applied. We agree with the District Court that the
redactions are consistent with the FBI’s application of the
claimed exemptions. As the District Court explained, it is
unsurprising that certain documents would be heavily
redacted given the sensitive nature of the investigative reports
at issue and the multiple exemptions that apply. We therefore
conclude that the FBI has released all reasonably segregable,
non-exempt material to Hodge.
***
We have considered all of Hodge’s arguments. We
affirm the judgment of the District Court.
So ordered.