Canning v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

GEORGE CANNING,
Civil Action No. 01-2215{GK)
Plaintiff,

v.

U.S. DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION

Pro Se Plaintiff George Canning ("Plaintiff"), brings this

action against Defendant, Federal Bureau of Investigation ("FBI"

or "Defendant"), under the Freedom of Information Act ("FOIA"), 5

U.S.C. § 552. This matter is now before the Court on Defendant's

Motion· for Summary Judgment on Behalf of the Federal Bureau of

Investigation Documents ("Def. 's Mot.") [Dkt. No. 52] and

Plaintiff's Cross-Motion for Partial Summary Judgment and

Supplemental Vaughn Indices ("Pl.'s Mot.") [Dkt. No. 69].

Upon consideration of the Motions, Oppositions, Replies, the

entire record herein, and for the reasons discussed below,

Defendant's Motion for Summary Judgment is granted in part and

denied in part and Plaintiff's Cross-Motion is granted in part and -

denied in part.

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 I. BACKGROUND 1

A. FOIA Requests

On October 12, 1995, Mr. Canning submitted separate FOIA

requests to the FBI Headquarters ("FBI HQ") , the FBI' s Boston Field

Office, Philadelphia Field Office, and Washington Metropolitan

Field Office. Mr. Canning's requests related to the FBI's

investigation and prosecution of the conspiracy to kidnap Lewis

duPont Smith and the investigation of Eastern States Distributors

Inc. of Upper Darby, ("ESDI") Pennsylvania, during the time frame

1991 through 1992.

In his requests , Mr. Canning seeks: ( i) al 1 records concerning

the FBI's investigation of ESDI from 1991 to 1992; (ii) all records

concerning court-ordered Title III wiretaps. of telephones used

during the ESDI investigation; (iii) all records concerning the

involvement of individuals, agencies, or organizations other than

the FBI and the U.S. Attorney's Office for the Eastern District of

Virginia; and (iv) a complete search of all filing systems and

locations, including Electronic Surveillance ( "ELSUR") indices.

1 Pursuant to Local Civil Rule 7(h), "[i]n determining a motion for summary
judgment, the Court may assume that facts identified by the moving party in
its statement of material facts are admitted, unless such a fact is
qmtroverted in the statement of genuine issues filed in opposition to the
motion." Consequently, unless otherwise noted, the ·Court states only
uncontroverted facts takeri from the parties' Sta.tements of Material Facts.
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Mr. Canning attached a privacy waiver from Lewis duPont Smith to

each of his requests.

Upon receipt of Mr. Canning's FOIA requests, the FBI processed

and released responsive documents to Mr. Canning. The FBI asserted

FOIA Exemptions 2, 3, 6, 7(C) and 7(D) to justify withholding

certain documents from production. The FBI also referred three

documents to the Executive Office for United States Attorneys

( "EOUSA") and two documents to the Criminal Division for review

and direct response to Mr. Canning. The Criminal Di vision and EOUSA

informed Mr. Canning that they were withholding, pursuant to

recognized FOIA exemptions, certain material from the referred

documents, including the names and addresses of third parties of

investigative interest, the names of FBI Special Agents, and a

1992 intra-agency memorandum (with subsequent revisions)

concerning Title III wiretap intercepts. Per the parties'

agreement, the FBI prepared, with Mr. Canning's input, a sample

Vaughn Index in lieu of an exhaustive account of the withheld

material.

B. Procedural History

On October 26, 2001~ Mr. Canning brought suit in this Court.

See Compl. [Dkt. No. l] . On January 28, 2005, the FBI filed its

pending Motion for Summary Judgment. On May 27, 2005, Mr. Canning

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filed his Cross-Motion for Partial Summary Judgment and for

Supplemental Vaughn Indices. Both motions have been fully briefed

and are ripe for review. See Dkt. Nos. 52, 68, 69, 79, 81.

On March 20, 2009, Mr. Canning filed a Motion for an Order

Directing the FBI to Re-Review its FOIA Releases in light of

updates to the· U.S. Attorney General's guidelines for FOIA

disclosures. See Pl.' s Mot. for Order [Dkt No. 88] . The Court

granted Mr. Canning's corollary request to stay the case pending

the completion of the FBI's re-review. Id. On December 14, 2009,

the FBI notified the Court that it had completed its re-review of

over 5,000 responsive pages and released additional material to

Mr. Canning. See Def.'s Status Report [Dkt No. 94].

II. STANDARD OF REVIEW

FOIA cases are typically and appropriately decided on motions

for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of

Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 {D.D.C.

2011); Defenders of Wildlife v. U.S. Border Patrol, 623 F. ·supp.

2d 83, 87 (D.D.C. 2009). "The standard governing a grant of summary

judgment in favor of an agency's claim that it has fully discharged

its disclosure obligations under FOIA is well-established ....

[T]he agency bears the burden of showing that there is no genuine

issue of material fact, even when the underlying facts are viewed

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in ,the light most favorable to the requester." Weisberg v. U.S.

Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983); see also

Fed. R. Civ. P. 56(c).

The court may award summary judgment solely on the basis of

"[a] reasonably detailed affidavit, setting forth the search terms

and the type of search performed, and averring that all files

likely to contain responsive materials (if such records exist)

were searched." Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68

(D.C. Cir. 1990).

If the agency withholds any material on the basis of statutory

exemptions, the agency's affidavits must also (1) "describe the

documents and the justifications for nondisclosure with reasonably

specific detail;" (2 )" "demonstrate that the information withheld

logically falls within the claimed exemption;" and must not be (3)

"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.

S.E.C., 926 F.2d.1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer

Watch, Inc. v. C.I.A., 692 F.2d 770, 771 (D.C. Cir. 1981)).

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 III. ANALYSIS

Mr. Canning does not challenge the sufficiency of the FBI's

search for responsive records. Instead, Mr. Canning contends: (1)

that the FBI has improperly withheld and redacted documents under

various FOIA exemptions; (2) the FBI has failed to segregate and

release all non-exempt information responsive to his FOIA

requests; and ( 3) the Court should order the FBI to prepare

supplemental Vaughn Indices. The Court will consider each of Mr.

Canning's arguments in turn.

A. Contested Exemptions2

1. Exemption 3

FOIA Exemption 3 precludes release of information that has

been:

specifically exempted from disclosure by [another]
statute [that] ( i) requires that the matters be
withheld from the public in such a manner as to leave no
discretion on the issue; or (ii) establishes particular
criteria for withholding or refers to particular types
of matters to be withheld.

5 u.s.c. § 552 (b) (3).

2 The FBI has asserted FOIA Exemption 2 to withhold certain material, an
assertion that Mr. Canning has not challenged. The FBI is thus entitled to
summary judgment on its uncontested exempti0n claims. With no material facts
in dispute as to material withheld under uncontested exemptions, the Court
finds that the FBI has met its burden and released all segregable
information. See Students Against Genocide v. U.S. Dep't of State, 257 F.3d
828, 833 (D.C. Cir. 2001). Nor has Mr. Canning pointed to any legal authority
to the contrary.
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 In determining whether Exemption 3 properly applies, the

Court conducts a two-part test that considers: whether "[1] the

statute in question [is] a statute of exemption as contemplated by

.exemption 3 ... [and whether] [2] the withheld material satisf [ies]

the criteria of the exemption statute." Fitzgibbon v. C.I.A., 911

F.2d 755, 761 (D.C. Cir. 1990) (citing C.I.A. v. Sims, 471 U.S.

159, 167 (1985)).

The FBI has withheld documents under Exemption 3 based on

Title III of the Omnibus Crime Control and Safe Streets Act of

1968, 18 U.S.C.. §§ 2510-20 ("Title III") and Rule 6(e) of the

Federal Rules of Criminal Procedure. Def.'s Mot. at 23. The Title

III material relates to the FBI's interception of certain

communications and consists of "the number assigned to the

interception, the targeted individuals and/or locations, and

information derived from the Title III intercepts, which was

further utilized in the [FBI's] investigation." Id. The material

withheld under Rule 6 (e) includes: (i) a Federal Grand Jury

subpoena; (ii) the company name and employee served with a Federal

Grand Jury subpoena; (iii) the name and identifying information of

a private citizen subpoenaed to testify . before a Federal Grand

Jury; (iv) telephone records and information that identifies

specific records subpoenaed by the Federal Grand Jury; (v) and the

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dates, company name and employee served with any Federal Grand

Jury subpoena. Id. Mr. Canning concedes that Rule 6(e) and Title

III constitute statutes of exemption for the purposes of Exemption

3 but argues that the FBI has applied them in an overly-broad

manner in order to withhold material in this case. Pl.'s Mot. at

20.

Turning first to the Title III material, Mr. Canning contends

that Title III bars the disclosure of only the content of

intercepted conversations, not other information such as the

number assigned to the interception, the identities of targeted

individuals, ·or locations. Id. at 22. Mr! Canning identifies

specific instances in the sample Vaughn Index where the FBI

withheld the identities of targeted telephone subscribers and

administrative information connected to intercepted conversations.

Id. at 24. The FBI argues that because Title III mandates that

intercepted communication applications must be sealed, the statute

protects not only the content of the communication, but also the

paperwork applying for and granting the authority which generally

includes the identities of the targets involved. Def.'s Opp. [Dkt.

No. 79] at 13.

Mr. Canning's argument is not convincing. Without directing

the Court to any legal authority supporting his interpretation of

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Title III - an interpretation that would mandate the disclosure

of identifying information intimately connected to intercepted

communications -Mr. Canning-would have the Court make the leap

that such information should be released.

The Court is unwilling to take such a step in light of other

cases to the contrary. See, e.g., Roberts v. F.B.I., 845 F. Supp.

2d 96, 101 (D.D.C. 2012) (concluding that Title III exempted from

disclosure the identities of targeted individuals, targeted

locations of microphones, and the identities of participants in

intercepted conversations); House v. U.S~ Dep't of Justice, 197 F.

Supp. 3d 192, 206 (D.D.C. 2016) (recognizing that uthis Court has

extended [Exemption 3' s protections] to the application for a

wiretap and all supporting materials submitted to the court to

obtain a Title III wiretap.").

Indeed, requiring the government to release the identities,

time and locations of targets might shed light on the content of

the underlying communication, thereby defeating the very purpose

of Title III's exemption provision. The Court concludes that the

FBI has appropriately asserted Exemption 3 over the Title III

material.

Nonetheless, the Court finds persuasive Mr. Canning's

argument that even if Exemption 3 shields the Title III material,

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the FBI must disclose some of the withheld information because the

government has already officially acknowledged it. Pl.'s Mot. at

25. Mr. Canning directs the Court's attention to a July 9, 1992

letter from Assistant Attorney General Robert Mueller that was

previously released by the Office of Information Policy ("OIP") in I

response to a FOIA request. Fourth Canning Deel. [Dkt. No. 69-1],

Ex. A. The letter explicitly authorizes the interception of the

communications of Donald L. Moore, Jr. and Edgar N. Smith with

regard to the 1992 case concerning the conspiracy to kidnap Lewis

duPont Smith. Id. In its Opposition, the FBI offers no response to

Mr. Canning's argument.

The Court of Appeals has concluded that "the government cannot

rely on an otherwise valid exemption claim to justify withholding

information that has been 'officially acknowledged' or is in the

'public domain."' Davis v. U.S. Dep't of Justice, 968 F.2d 1276,

1279 (D.C. Cir. 1992) (quoting Afshar, 702 F.2d at 1130-34 and

Fitzgibbon, 911 F. 2d at. 765-66). An official acknowledgment must

meet three criteria: (1) the information requested "must be as

specific as the information previously released;" (2) the

information "must match the information previously disclosed;" and

(3) the information "must already have been made public through an

official and.documented disclosure." Id. To the extent Mr. Canning

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•.

seeks the disclosure of the identities of Donald Moore and Edgar

Smith in the withheld material, Mr. Canning has met these factors.

The letter written by Assistant Attorney General Mueller, and

disclosed by OIP, unambiguously indicates that Moore and Smith

were the subjects of the wiretaps. See Fourth Canning Deel., Ex.

A. Mr. Canning is therefore entitled to all instances in which the

FBI has withheld the names of Smith and Moore in the context of

Title III intercepted communications relating to the kidnapping

conspiracy case.3

Turning next to the material that the FBI has withheld under

Rule 6(e) of the Federal Rules of Criminal Procedure, Mr. Canning,

again, does not dispute that Rule 6(e) falls under the ambit of

Exemption 3. Pl.'s Mot. at 20. Instead, he argues that there is

"little of the grand jury's investigation [into the Smith

kidnapping plot] which is still secret" and therefore he is

entitled to the withheld information which, Mr. Canning assumes,

was previously disclosed in the government's Jencks disclosures in

that case. Id. at 26-27. The FBI, Mr. Canning contends, "has not

shown that the material it has withheld ... has not been disclosed

3 By the same token, to the extent that the FBI is withholding portions of the
July 9, 1992 letter from Robert Mueller that were publically disclosed by
OIP, the FBI must release the same portions to Mr. Canning. Because the
letter discloses the address of Donald Moore, Mr. Canning is also entitled to
this information in the material the FBI has withheld.
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to the public [.]" Id. at 27. Mr. Canning, however, has it

backwards. To prevail on a public domain argument, the plaintiff,

not the government, bears the burden of production to point to

specific information in the public domain that appears to duplicate

that being w~thheld. Davis, 968 F.2d at 1279. Because Mr. Canning

has not carried that burden, his request for the Rule 6(e) material

must be denied.

2. Exemption 7(C)

FOIA Exemption 7 (C) protects information compiled for law

enforcement purposes to the extent that disclosure "could

reasonably be expected to constitute an unwarranted invasion of

personal privacy." 5 U.S.C. § 552(b) (7) (C). In determining whether

Exemption 7(C) applies, the Court must balance the public interest

in disclosure with the privacy interests implicated by the release

of the material. Computer Prof'ls for Soc. Responsibility v. U:S.

Secret Serv., 72 F.3d 897, 904 (D.C. Cir. 1996). Suspects,

witnesses, investigators, and third parties all have substantial

privacy interests that are implicated by the public release of law

enforcement investigative materials. Id.; Davis, 968 F.2d at 1281.

Courts recognize that the disclosure of such material may lead to

embarrassment and physical or reputational harm to these

individuals. See SafeCard, 926 F.2d at 1205.

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'I

It "is well established that the 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 (internal quotations omitted). Whether disclosure

of private information is warranted under Exemption 7(C) turns on

whether the information "sheds light on an agency's performance of

its statutory duties." u. s. Dep' t of Justice v. Reporters Comm.

for Freedom of the Press, 489 U.S. 749, 773 (1989).

The FBI has asserted Exemption 7 (C) to withhold the names

and/or identifying information of: (i) FBI personnel; (ii) local

law enforcement officers; (iii) third parties of investigative

interest to the FBI or local law enforcement agencies; (iv) third

parties mentioned in investigatory records (v)sources who provided

information under an express assurance of confidentiality; (vi)

third parties interviewed by the FBI; (vii) commercial

institutions and employees; and (viii) an attorney representing a

third party. Gehle Deel. [Dkt. No. 52-3) ~ 57.

Mr. Canning maintains that the FBI has officially

acknowledged, and therefore must disclose, some of this withheld

information, including the subjects of the Smith kidnapping

investigation, the subscribers to wiretapped telephones, and the

individuals accused in the indictments. Pl.'s Mot. at 29-32. In

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 support of his position, Mr. Canning has identified a number of

public government documents explicitly indicating that the

subjects of the Smith kidnapping case included Donald L. Moore,

Jr., Galen G. Kelly, Edgar Newbold Smith, and Robert Point. In

addition to the aforementioned July 9, 1992 letter from Assistant

Attorney General Robert Mueller, Mr. Canning has identified: (1)

the Criminal Complaint charging these individuals with conspiracy

to kidnap Lewis duPont Smith; (2) an FBI News Release announcing

the arrests of these individuals; (3) the corresponding indictment

in the Eastern District of Virgina; and (4) a 1992 memorandum

released by EOUSA in a FOIA disclosure naming Kelly, Moore and

Smith as subjects of the investigation. See Fourth Canning Deel.,

Exs. C-F.

These documents, some of which were disclosed by the

.government in previous FOIA releases, make it abundantly clear

that the roles of Moore, Kelly, Smith, and Point as subjects of

the kidnapping investigation exist in the public domain. With these

precise examples, Mr. Canning has met his burden to identify

specific documents in the public record that duplicate the material

being withheld by the FBI. 4 Davis, 968 F. 2d at 1279. The Court

4 Relatedly, Mr. Canning has identified a June 12, 1996 document previously
released by EOUSA that appears to match the description of a document the
government has withheld, serial SubZl-5. See Pl.'s Mot. at 6. If SubZl-5 is
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 therefore grants Mr. Canning's Motion for Partial Summary Judgment

regarding the withholding of the names of Donald Moore, Jr., Galen

Kelly, Edgar Newbold Smith, and Robert Point as subjects of the

investigation and subscribers to the telephones that the FBI

wiretapped. s

3. Exemption 7(D)

FOIA Exemption 7 (D) allows an agency to exempt records or

information compiled for law enforcement purposes where such

information "could reasonably be expected to disclose the identity

of a confidential· source ... which furnished information on a

confidential basis." 5 U.S. C. § 552 (b) (7) (D) To invoke this

exemption, an agency must show either that the source spoke only

under express assurances of confidentiality or that the

circumstances support an inference of confidentiality. U.S. Dep't

of Justice v. Landano, 508 U.S. 165, 174 (1993).

The FBI has invoked Exemption 7 (D) to withhold: (i) the

identities of and information received from individuals who

provided information to the FBI during the course of the

investigation into the plot to abduct Lewis duPont Smith under an

identical to the EOUSA document that lies in the public domain, the FBI must
also release it to Mr. Canning.
5 The FBI also generally asserts Exemption 6 in conjunction with its Exemption

7(C) claims. See Steward Deel. [Dkt. No. 79-1] , 17. Because the Court has
concluded that certain of this information lies in the public domain, it need
not examine whether Exemption 6 applies to those materials.
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...

implied assurance of confidentiality; (ii) information provided by

individuals who were interviewed under an express assurance . of

confidentiality; (iii) source symbol numbers; and (iv) information

provided by and/or identifying data concerning source symbol

numbers. Def.'s Mot. at 35-37.

Mr. Canning's principal challenge to the FBI's assertion of

Exemption 7(D) concerns the withholding of information concerning

.Douglas Poppa, the government's key witness in the federal

kidnapping conspiracy trial. According to Mr. Canning, Poppa' s

role in the trial and underlying investigation was sufficiently

public that he cannot be considered a "confidential" source for

the purposes of Exemption 7(D). Mr. Canning further points out

that although the FBI initially withheld references to Poppa in

its .disclosures, following the 2009 re-review of its FOIA releases,

the FBI disclosed that Poppa was an FBI source. See Pl.'s Status
\ ~-

Report [Dkt. No. 96] at 5-6 (identifying specific pages in which

the FBI disclosed that Poppa was "working at the direction of the

FBI"). Therefore, Mr. Canning argues, the information concerning

Poppa is officially in the public domain and cannot be withheld

from disclosure.

The Court agrees with Mr. Canning. In asserting a claim of

prior disclosure, plaintiffs bear the burden of production to point

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to specific information in the public domain that appears to

duplicate that being withheld. Davis, 968 F.2d at 1279. Mr. Canning

has clearly met his burden. He has identified specific instances

in which the FBI has disclosed to him, in the FOIA context, Poppa's

identity and role in the kidnapping investigation. See Pl. 's Status

Report at 5-6. Accordingly, the Court grants summary judgment in

Mr. Canning's favor as it relates to the FBI' s assertion of

Exemption 7(D) to withhold information concerning Poppa's role in

the kidnapping investigation. To the extent that the FBI continues

to withhold Poppa's name and identifying information (including

source symbol numbers assigned to Poppa) from Mr. Canning, it shall

disclose this material forthwith.

Mr. Canning also challenges the FBI's invocation of Exemption

7 (D) to withhold information obtained from sources under an implied

assurance of confidentiality. Pl.'s Mot. at 19. Mr. Canning takes

issue with the fact that the FBI states that the sources "were

interviewed under circumstances from which an assurance of

confidentiality may be implied" but does not provide further

explanation to support an inference of confidentiality. Id. In

response, the FBI argues that the implied assurances of

confidentiality can be substantiated by the nature of the crime,

in this case a high-profile kidnapping. Def.'s Opp. at 10.

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 The Court is not persuaded by the FBI' s reasoning. In Landano,

the Supreme Court concluded that the government is not entitled to

a presumption that all sources supplying information in the course

of a criminal investigation are confidential sources within the

definition of Exemption 7(D). 508 U.S. at 181. Although an implied

grant of confidentiality may at times be inferred from the nature

of a criminal investigation, see id., the FBI has, in this case,

done nothing more than assert that the Court should infer

confidentiality just because the underlying case concerned a

kidnapping conspiracy.

The FBI has not provided any explanation as to the connection

between the sources and the criminal activity. "Nor is there any

description of the circumstances which purportedly gave rise to

the implication that the source(s) provided information to the FBI

only with the understanding that their identities and the

information they provided would· not be released to the public."

Gamboa v. Exec. Office for U.S. Attorneys, 65 F. Supp. 3d 157, 170

(D.D.C. 2014) (concluding that the FBI improperly withheld

information under Exemption 7 (D) under an implied assurance of

confidentiality) .

As Mr. Canning highlights, the government has the obligation

to "point to more narrowly defined circumstances that ... support

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t:. .

the inference" of confidentiality. Landano, 508 U.S. at 172.

Because the FBI has not done so, the Court concludes that an

assurance of confidentiality between the FBI and its informants in

the kidnapping case cannot be implied. Accordingly, the Court

grants summary judgment in Mr. Canning's favor as far as it relates

to the documents the FBI has withheld under Exemption 7(D)

containing the identities of individuals who provided information

to the FBI under a purported implied assurance of confidentiality

during the course of the kidnapping investigation.

B. Segregability

Mr. Canning contends that the FBI has failed to segregate and

release all non-exempt information responsive to his FOIA

requests. Pl.'s Mot. at 32. FOIA requires that "[a]ny reasonably

segregable portion of a record shall be provided to any person

requesting such record after deletion of the portions which are

exempt." 5 U.S.C. § 552(b). "[N]on-exempt portions of a document

must be disclosed unless they are inextricably intertwined with

exempt portions." Elliott v. U.S. Dep't of Agric., 596 F.3d 842,

851 (D.C. Cir. 2010) (quoting Mead Data Cent., Inc. v. U.S. Dep't

of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)). To demonstrate

that all reasonably segregable material has been released, the

agency must provide a "detailed justification" for its non-

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segregability. Mead Data, 566 F.2d at 261. "However, the agency is

not required to provide so much detail that the exempt material

would be effectively disclosed." Johnson v. Exec. Office for U.S.

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

Mr. Canning focuses his segregability argument on the

information that the FBI has withheld under Exemption 7 {C) .

Specifically, he argues that the FBI's blanket assertion that it

has reviewed all pages to ensure all the segregable non-exempt

information was released is inadequate to meet its burden of proof.

Concerning the material the FBI has withheld under Exemption

7(C) that the Court has not already ordered disclosed, see supra,

the Court finds that the FBI has met its obligation to release all

segregable information.

As discussed above, an agency is not required to provide so

much detail that the exempt material is in effect disclosed. The

Court of Appeals held in Johnson that a comprehensive Vaughn index,

along with an affidavit that a line~by-line segregability review

of each document withheld in full, was sufficient to fulfill the

agency's obligation to show that further segregability was not

feasible. See Johnson, 310 F.3d at 776. Like the agency in Johnson,

the FBI has provided a detailed Vaughn index and an affidavit

asserting that each responsive document was reviewed for

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 segregability. See Gehle Deel. , 54. During the FBI's re-review of

its FOIA releases, it re-considered each redaction and withholding

to determine whether information previously wi thhe1d could be

released. Id. Where the "factual justification for claiming an

exemption appeared discretionary or marginal, the FBI erred on the

side of disclosure. Id.

Accordingly, the Court finds that the FBI has adequately

demonstrated that it has released all segregable material and

denies M~. Canning's Motion for Summary Judgment on this issue. 6

C. Supplemental Vaughn Indices

Pursuant to the Parties' agreement, the FBI prepared a sample

Vaughn Index in lieu of an exhaustive account of the withheld

material. Al though Mr. Canning played a role in selecting the

documents to be included in the sample Index, he now contends that

the FBI should prepare supplemental Vaughn Indices. First, Mr.

Canning argues that the FBI should account for a document, WMFO

serial SubL-14, that it released to Mr. Canning after the

6 Mr. Canning also points to a gap in the disclosed serials to suggest that
the FBI may be withholding additional material without justification. Pl.'s
Mot. at 41. In its supporting declaration, the FBI attributes the gap to an
inadvertent skip in the serialization process. See Gehle Deel. ~40-42. The
Court accords the FBI's declaration a presumption of good faith. See
SafeCard, 926 F.2d at 1200 (recognizing that agency affidavits are accorded
"a presumption of good faith, which cannot be rebutted by purely speculative
claims about the existence and discoyerability of other documents) (internal
quotation marks omitted) .
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preparation of the initial sample Vaughn Index. Because he did not

have the opportunity to consider whether to include this document

in the sample Index, Mr. Canning insists it should be incorporated

into a supplemental Vaughn Index. Pl.'s Mot. at 42. Second, Mr.

Canning maintains that the FBI's sample Vaughn Index is vague and

confusing. Id. at 43.

The Court finds both of Mr. Canning's arguments unpersuasive.

There is no set formula for a Vaughn Index or declarations, but

they must "provide[] a relatively detailed justification [for any

nondisclosure] , specifically identif [y] the reasons why a

particular exemption is relevant and correlat[e] those claims with

the particular part of a withheld document to which they apply."

Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 146 (D.C.

Cir. 2006) (quoting Mead Data, 566 F. 2d at 251) . Regarding Mr.

Canning's first argument, Mr. Canning overlooks the function of

the sample Vaughn Index. A sample Index does not purport to contain

every document the government chooses to withhold. Rather, as the

FBI has underscored, the purpose is to allow the Court to

extrapolate its conclusions from the representative sample to the

larger group of withheld materials. The Vaughn Index in this case

adequately fulfills that purpose.

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 Turning to Mr. Canning's second argument, after Mr. Canning

raised his concerns regarding the confusing nature of the sample

Vaughn Index, the FBI re-reviewed the documents at issue and

"remarked them in an effort to make it easier for Plaintiff to

read and understand the exemptions claimed." Def. 's Opp. at 18.

The FBI also provided Mr. Canning with additional information

regarding the withheld material. See Steward Deel. ~ 41. In his

Reply Motion, Mr. Canning does not suggest that the FBI's remedial

steps were insufficient to address his concerns. See generally

Pl.'s Reply [Dkt. No. 81]. Accordingly, the Court will consider

the issue resolved and deny Mr. Canning's Motion for Supplemental

Vaughn Indices.

IV. CONCLUSION

For the foregoing reasons, Defendant's Motion for Summary

Judgment shall be granted in part and denied in part and

Plaintiff's Cross-Motion for Partial Summary Judgment and

Supplemental Vaughn Indices shall be granted in part and denied in

part.

Further, Plaintiff's Motion for an Order Directing the FBI to

Re-Review its FOIA Releases for Discretionary Release of

Information [Dkt. No. 88] shall be denied as moot in light of the

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fact that the FBI conducted the re-review that Mr. Canning

requested.

An Order shall accompany this Memorandum Opinion.

July 13, 2017

Copies to: attorneys on record via ECF

and to:
George Canning
60 Sycolin Road
Leesburg, VA 20175

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