Richard Villar v. Federal Bureau of Investigation

2018 DNH 141

• Court: District Court, D. New Hampshire
• Decided: July 23, 2018
• Docket: 15-cv-270-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Villar

v. Civil No. 15-cv-270-LM Opinion No. 2018 DNH 141 Federal Bureau of Investigation

O R D E R

Richard Villar, a prisoner, brings this suit under the

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

the refusal of the Federal Bureau of Investigation (“FBI”) to

disclose certain documents and information that he requested

pursuant to that statute. Following the court’s order denying

the parties’ motions for summary judgment without prejudice, the

FBI and Villar have filed second cross motions for summary

judgment.

STANDARD OF REVIEW

A movant is entitled to summary judgment if it “shows that

there is no genuine dispute as to any material fact and [that

it] is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). In reviewing the record, the court construes all

facts and reasonable inferences in the light most favorable to

the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013). “Where, as here, the parties have filed

cross motions for summary judgment, the court applies the same

standard applicable to all summary judgment motions, but

considers the motions separately.” Citizens for a Strong New

Hampshire, Inc. v. I.R.S., No. 14-CV-487-LM, 2015 WL 5098536, at

*3 (D.N.H. Aug. 31, 2015).

BACKGROUND

I. Factual Background

In April 2006, Richard Villar was indicted on charges of

bank robbery and conspiring with two others to commit bank

robbery under 18 U.S.C. §§ 371 and 2113(a). The two co-

conspirators pled guilty to the charges against them. Villar’s

case proceeded to trial, where a jury convicted him of bank

robbery and conspiracy to commit bank robbery. Villar was

sentenced to a 60-month sentence for one count and a concurrent

188-month sentence for the other count.

In May 2010, Villar sent the FBI a Freedom of Information

Act and Privacy Act request letter, in which he requested all

records or data in the FBI’s possession stored “specifically

under my name and /or an identifier assigned to my name.” Doc.

no. 43-3 at 1. Under a section in the letter entitled “SPECIFIC

2 REQUESTS,” Villar requested several documents relating to Shauna

Harrington, a witness who testified at his criminal trial. That

request included, among other things, interview notes, police

reports, and criminal history about Harrington and any records

of inducements that the government provided Harrington in

exchange for her testimony. Doc. no. 43-3 at 3.

Because Villar’s request for records concerning Harrington

could have included documents other than those covered by

Villar’s main request for the documents stored under his name,

the FBI opened two separate requests. The first request covered

the records related to Villar. The second request covered the

FBI’s records relating specifically to Harrington.

Pursuant to its policy for third-party requests, the FBI

refused to search for any records about Harrington unless Villar

provided authorization from Harrington, proof of Harrington’s

death, or a “clear demonstration that the public interest in

disclosure outweighs the personal privacy interest and that

significant public benefit would result from the disclosure of

the requested records.” Doc. no. 43-4 at 1.

In response to the request concerning information about

Villar, the FBI conducted a search of its records and identified

3 615 pages1 of documents that were responsive.2 In September

2012, the FBI released 388 pages of documents to Villar, 126 of

which contained redactions. The FBI withheld the remaining 227

pages of documents in their entirety. See doc. no. 43-2 at ¶

86. In support of its decision to not disclose all of the

requested information, the FBI cited several exemptions to FOIA.

Villar appealed the FBI’s response to his request for

records stored under his name to the Department of Justice’s

Office of Information Policy. The Office of Information Policy

denied his appeal in June 2015.

II. Procedural Background

Villar then brought this suit, proceeding pro se,3 asserting

a FOIA claim against the FBI challenging the response to his

FOIA request. In addition, Villar brought claims against David

Hardy, the Section Chief for the FBI’s Records Management

1The FBI first informed Villar that it had identified 651 documents responsive to the request for records in his file. See doc. no. 43-6. The FBI now contends that there were 615 documents responsive to that request. Doc. no. 43-2 at ¶ 86.

2Initially, the FBI refused to disclose any of the documents in Villar’s files, asserting that they were part of a “pending or prospective law enforcement proceeding.” Doc. no. 43-8 at 1. Villar successfully appealed that decision to the Department of Justice’s Office of Information Policy, which remanded Villar’s request back to the FBI. See doc. no. 11.

3 Villar has since obtained an attorney.

4 Division, and Brian Keefe, an FBI Special Agent. The court

previously dismissed Villar’s claims against Hardy and Keefe.

Doc. no. 40.

Following that order, the parties filed cross motions for

summary judgment on Villar’s remaining FOIA claims. See doc.

nos. 43 & 47. In its order on those motions, the court granted

the FBI’s motion for summary judgment on any claims arising out

of Villar’s request to search for records about Harrington

because Villar had failed to exhaust his administrative remedies

for that request. Doc. no. 53 at 10.

As to the request for records in Villar’s file, the court

denied both the FBI’s and Villar’s motions for summary judgment.

With respect to the FBI’s motion, the court concluded that the

government’s Vaughn index did not provide a sufficient factual

basis to assess whether the withheld material was exempt from

disclosure. With respect to Villar’s motion, the court

concluded that there were disputed issues of fact that precluded

summary judgment. In addition, the court rejected Villar’s

argument that the FBI waived its right to assert certain FOIA

exemptions by failing to raise those exemptions in its

administrative response to him. The court’s denial of the

parties’ motions for summary judgment, however, was without

prejudice to them filing second motions for summary judgment.

5 DISCUSSION

The FBI and Villar move again for summary judgment on the

remaining portion of Villar’s FOIA claim concerning the records

about him.4 In preparing its second motion for summary judgment,

the FBI reconsidered its original withholdings, and, as a

result, released in full twelve pages of documents that it

originally withheld. See doc. no. 55-4. Accordingly, the FBI’s

motion now asserts that it properly withheld 215 pages in full

and properly redacted material from another 126 pages. The FBI

contends that its withholdings and redactions are justified

under FOIA Exemptions 6, 7(C), 7(D), and 7(E). See 5 U.S.C.

§ 552(b)(6) and (b)(7)(C), (D), and (E).

In support, the FBI incorporates its original motion for

summary judgment, which argued that the withheld material was

4 Although Villar’s FOIA request to the FBI sought all records stored under his name, the complaint that he filed in this action appears to seek only documents concerning Harrington, which is likely a much narrower universe of documents than that which the FBI withheld. Despite pointing this fact out in its motion for summary judgment, the FBI’s motion addresses all the material that it withheld in response to Villar’s FOIA request, not just material concerning Harrington. Villar’s response to the FBI’s motion concerns the disclosure of all withheld material, not just that concerning Harrington. Because Villar was pro se when he filed his complaint, and because the parties appear to agree that the scope of Villar’s FOIA claim challenges the entirety of the FBI’s withholding, the court will construe Villar’s FOIA claim in that manner.

6 exempt from disclosure under FOIA. See doc. no. 43. The FBI

also filed a second Vaughn index providing additional factual

support for its claimed exemptions. In response, Villar argues

that the FBI’s revised Vaughn index is inadequate and that the

FBI has improperly withheld in full numerous documents.

Finally, Villar argues that the court should view the withheld

documents in camera.

In support of his motion for summary judgment, Villar

incorporates his objection to the FBI’s first motion for summary

judgment, see doc. no. 45, which argued that the FBI’s claimed

exemptions did not apply.5 In response, the FBI again

incorporates its original motion for summary judgment.

FOIA requires federal agencies to make their records

available to any person upon request. 5 U.S.C. § 552(3). FOIA

was “‘enacted to facilitate public access to Government

documents’ and ‘designed to pierce the veil of administrative

secrecy and to open agency action to the light of public

scrutiny.’” Union Leader Corp. v. U.S. Dep't of Homeland Sec.,

749 F.3d 45, 49–50 (1st Cir. 2014) (quoting U.S. Dep't of State

v. Ray, 502 U.S. 164, 173 (1991)). “FOIA's basic policy of full

agency disclosure furthers the statute’s essential purpose of

5 Villar also incorporated this document in support of his first motion for summary judgment. Doc. no. 47.

7 permitting citizens to know ‘what their government is up to.’”

Id. at 50 (internal quotation marks omitted).

The statute’s “right of access is not absolute, however, as

FOIA exempts certain categories of materials from disclosure in

order to effectuate the goals of the FOIA while safeguarding the

efficient administration of the government.” Id. (internal

quotation marks omitted); see also 5 U.S.C. § 552(b) (providing

exemptions). “To fulfill the broad purposes of FOIA, [courts]

construe these exemptions narrowly.” Stalcup v. C.I.A., 768

F.3d 65, 69 (1st Cir. 2014). “FOIA further mandates that ‘any

reasonably segregable portion of a record shall be provided to

any person requesting such records after deletion of the

portions which are exempt under [section 552(b)].’” Carpenter v.

U.S. Dep't of Justice, 470 F.3d 434, 442 (1st Cir. 2006)

(quoting 5 U.S.C. § 552(b)).

“[T]he government agency bears the burden of proving the

applicability of a specific statutory exemption.” Union Leader

Corp., 749 F.3d at 50. “That burden remains with the agency

when it seeks to justify the redaction of identifying

information in a particular document as well as when it seeks to

withhold an entire document.” Id. (quoting Ray, 502 U.S. at

173). To meet that burden, “courts often require the

withholding agency to provide a ‘Vaughn’ index,” which sets

8 forth the factual basis for the claimed exemptions. Carpenter,

470 F.3d at 442. In addition, “[t]he district court must

determine de novo whether the agency has met its burden.” Union

Leader, 749 F.3d at 50.

I. Vaughn Index

Ordinarily, a Vaughn index “includes a general description

of each document sought by the FOIA requester and explains the

agency’s justification for nondisclosure of each individual

document or portion of a document.” Church of Scientology Int’l

v. U.S. Dep’t of Justice, 30 F.3d 224, 228 (1st Cir. 1994). The

index serves the following three purposes:

[I]t forces the government to analyze carefully any material withheld, it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, and it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court.

Id. at 228 (quoting Maynard v. C.I.A., 986 F.2d 547, 557 (1st

Cir. 1993)).

When assessing a Vaughn index, “[i]t is the function, not

the form, which is important, and the question is whether the

particular taxonomy employed afford[s] the FOIA requester a

meaningful opportunity to contest, and the district court an

adequate foundation to review, the soundness of the

withholding.” Id. To satisfy this test, the index “must supply

9 a relatively detailed justification, specifically identifying

the reasons why a particular exemption is relevant and

correlating those claims with the particular part of a withheld

document to which they apply.” Id. (internal quotation marks

omitted). This justification must also include a factual basis

supporting the agency’s segregability conclusion. Id. at 230-

31. In practical terms, this means that when an agency

withholds a document in full or several pages of a document in

full, it must explain why the withheld material does not contain

any other segregable and disclosable material. Id. at 230-33.

In support of its first motion for summary judgment, the

FBI submitted a coded Vaughn index. See doc. no. 43-26. That

filing relied on a series of justification codes. As explained

in the second declaration of David M. Hardy, doc. no. 43-2, each

code referred to a specific category of material that, the FBI

contended, was exempt from disclosure under specific statutory

exemptions, id. at ¶ 54. For pages that the FBI disclosed in

redacted form, the agency stamped a justification code on the

face of the document next to the corresponding redaction to

explain the basis for withholding the material. For pages

withheld in full, the FBI provided a table that identified the

page number withheld and referenced an exemption code to justify

that withholding. The FBI did not provide descriptions of the

10 documents or specific descriptions of the material it withheld.

Rather, the second Hardy declaration generally described the

category of material that the FBI argued was exempt under each

code.

In its order on the parties’ first motions for summary

judgment, the court acknowledged that the First Circuit has

approved of the use of coded indices in certain circumstances.

Doc. no. 53 at 13-15 (citing Maynard, 986 F.2d at 559 & 559

n.13). Nevertheless, the court concluded that the FBI’s index

was insufficient for two principal reasons. Id. at 15-16.

First, the index did not describe the contents of the documents

for which it was claiming an exemption to FOIA’s disclosure

requirement. Id. For the pages that the FBI had withheld in

full, the lack of description of those pages’ contents made it

functionally impossible for Villar or the court to evaluate the

applicability of the claimed exemptions. Second, the FBI failed

to demonstrate that it had conducted an appropriate

segregability analysis and instead relied on conclusory

assertions about segregability in the second Hardy declaration.

Id. at 16.

In support of its renewed motion for summary judgment, the

FBI has submitted a new Vaughn index. See doc. no. 55-3. The

FBI contends that this index explains its withholdings in more

11 detail and cures the problems that the court identified in its

previous order. In response, Villar argues that the new index

fails because, like the FBI’s last submission, this one does not

“attempt to particularize each exemption to the actual document

withheld” and relies exclusively on “the generalized

description[s] contained in the Hardy Declaration.” Doc. no.

56-1 at 1-2.

The court agrees with the FBI that its new index is

sufficient. Unlike its first index, the new index identifies

and describes each document that the FBI has withheld in full or

in part. This provides meaningful context that allows Villar

and the court to evaluate the applicability of the FBI’s claimed

exemptions. In addition, the index describes the specific

content in each document that the FBI has withheld and provides

a justification for why that material is exempt.6 Although, as

Villar notes, these justifications often match the same

generalized justifications that the FBI relied on in its

original motion for summary judgment, they are now linked to a

description of the specific withheld material. The FBI,

therefore, has particularized these justifications to the

withheld material. Finally, the FBI’s new index also explains

6 This description is located in the section in each entry entitled “segregability analysis.”

12 why it concluded that the withheld material contained no

segregable, disclosable information.

Because of these features, the new index provides a

sufficient factual basis to allow both Villar and the court to

evaluate the applicability of the claimed exemptions and whether

the FBI conducted a proper segregation analysis.

II. FOIA Exemptions

The FBI contends that its withholdings are justified under

FOIA exemptions b(6), b(7)(C), b(7)(D), and b(7)(E). See 5

U.S.C. § 552(b) (setting forth exemptions to FOIA’s disclosure

requirement). In response, Villar argues that the exemptions

are not applicable.

A. Exemptions 6 and 7(C)

Pursuant to Exemptions 6 and 7(C), the FBI has withheld

responsive material that contains the names or other identifying

information of third parties. Specifically, this material

includes the names and identifying information of government and

law enforcement personnel and other third parties with a

connection to Villar’s criminal investigation. For each record

that the FBI claims is exempt from disclosure under Exemption 6,

it also asserts Exemption 7(C) as a separate basis for its

withholding.

13 FOIA Exemption 6 exempts from FOIA’s disclosure requirement

“personnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of

personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C)

exempts from FOIA’s disclosure requirement “records or

information compiled for law enforcement purposes . . . to the

extent that the production of such [] records or information

. . . could reasonably be expected to constitute an unwarranted

invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(c).

The statutory language in Exemption 6, which requires that

the disclosure actually constitute “a clearly unwarranted”

invasion of personal privacy, “is less protective of personal

privacy than Exemption 7(C) . . . .” Union Leader, 749 F.3d at

50 n.4. Accordingly, when an agency asserts both exemptions to

justify withholding material that has been compiled for law

enforcement purposes, “[the court] need not address Exemption 6

separately because ‘all information that would fall within scope

of Exemption 6 would also be immune from disclosure under

Exemption 7(C).’” Moffat v. U.S. Dep’t of Justice, 716 F.3d

244, 250 n.4 (1st Cir. 2013) (internal quotation marks omitted);

Union Leader, 749 F.3d at 50 n.4. Because there is no dispute

that the records at issue here were compiled for law enforcement

14 purposes, the court will assess only the applicability of

Exemption 7(C).

“To determine whether the government may rely on Exemption

7(C) to withhold documents, [the court] balance[s] the privacy

interest at stake in revealing the materials with the public

interest in their release.” Eil v. U.S. Drug Enf't Admin., 878

F.3d 392, 398 (1st Cir. 2017) (internal quotation marks

omitted). The Supreme Court has observed “that an individual’s

privacy interest is ‘at its apex’ when he or she is involved in

a law enforcement investigation.” Stalcup, 768 F.3d at 73

(quoting Nat'l Archives & Records Admin. v. Favish, 541 U.S.

157, 166 (2004)). Once the government demonstrates that a

legitimate privacy interest recognized under Exemption 7(C) is

present, “the party seeking disclosure must show (1) that there

is a ‘significant’ public interest in disclosure, and (2) that

the requested information is ‘likely to advance that interest.’”

Eil, 878 F.3d at 398 (quoting Favish, 541 U.S. at 172).

1. Privacy Interests

In support of its withholdings, the FBI contends that the

third parties identified in the withheld material have

substantial privacy interests in not having their participation

or connection to a criminal investigation revealed. In

interpreting Exemption 7(C), the “[Supreme] Court has rejected

15 ‘cramped notion[s] of personal privacy,’ [U.S. Dep't of Justice

v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 763

(1989)], and instead has interpreted the exemption as

‘protect[ing] a broad notion of personal privacy, including an

individual's interest in avoiding disclosure of personal

matters,’ Carpenter, 470 F.3d at 438.” Union Leader, 749 F.3d

at 50-51. Therefore, the privacy interest “encompasses the

individual's control of information concerning his or her

person, and when, how, and to what extent information about them

is communicated to others.” Carpenter, 470 F.3d at 438

(internal quotation marks and alterations omitted).

Consistent with this privacy interest, the Supreme Court has

emphasized that the “disclosure of records regarding private

citizens, identifiable by name, is not what the framers of the

FOIA had in mind.” Carpenter, 470 F.3d at 438-39 (quoting

Reporters Comm., 489 U.S. at 765-66). Rather, “the FOIA’s

central purpose is to ensure that the Government’s activities be

opened to the sharp eye of public scrutiny, not that information

about private citizens that happens to be in the warehouse of

the Government be so disclosed.” Id. (quoting Reporters Comm.,

489 U.S. at 774).

16 a. Private Parties Mentioned in FBI Files

Pursuant to Exemption 7(C), the FBI has withheld the names

and identifying information of people of investigative interest,

including Villar’s co-conspirators, people who provided

information to the FBI, and people who are mentioned in the

agency’s records because they came into contact with the FBI’s

investigation. In support, Hardy asserts in his second

declaration that these individuals have strong privacy interests

in keeping their identity confidential. Hardy states that

revealing the identity of these third parties and thereby

positively associating them with a criminal investigation would

create a negative stigma. Hardy also contends that disclosing

the identity of individuals who participated in or were

connected to the criminal investigation could expose them to

harassment or reprisal.

In response, Villar argues that Harrington and his two co-

conspirators have diminished privacy interests because they have

been arrested. Villar also contends that his two co-

conspirators have no privacy interests in the withheld

information because they waived those interests when they signed

plea agreements with the government.

“Exemption 7(C) recognizes that the stigma of being

associated with any law enforcement investigation affords broad

17 privacy rights to those who are connected in any way with such

an investigation unless a significant public interest exists for

disclosure.” Ortiz v. United States Dep't of Justice, 67 F.

Supp. 3d 109, 121 (D.D.C. 2014) (internal quotation marks

omitted). Therefore, the class of individuals who possess a

privacy interest under Exemption 7(C) is broad and includes

investigatory targets, those who provide information to law

enforcement, and third parties mentioned in investigative files.

See Maynard, 986 F.2d at 566 (observing that “confidential

sources . . . and investigatory targets . . . have significant

privacy interests in not having their names revealed.”);

Carpenter, 470 F.3d at 439 (recognizing privacy interest of

witnesses, informants, and those who provide information to law

enforcement); Moffat, 716 F.3d at 251 (recognizing privacy

interests of people merely mentioned during law enforcement

interviews); Jett v. Fed. Bureau of Investigation, 241 F. Supp.

3d 1, 12–13 (D.D.C. 2017) (protecting identity of individuals

mentioned in FBI files); Hertz Schram PC v. F.B.I., No. 12-CV-

14234, 2014 WL 764682, at *12 (E.D. Mich. Feb. 25, 2014) (same).

Nevertheless, Villar contends that three particular people,

Harrington and Villar’s two co-conspirators, possess a

diminished privacy interest because they have been arrested for

crimes. In support, Villar relies on Union Leader. In that

18 case, the First Circuit considered whether Exemption 7(C)

permitted the United States Immigration and Customs Enforcement

to redact the names of six aliens from forms that contained

summaries of the aliens’ arrest and criminal conviction history.

749 F.3d at 49. The First Circuit held that Exemption 7(C) did

not shield the names from disclosure. Id. at 56.

In doing so, the First Circuit acknowledged that Supreme

Court precedent “makes clear that . . . arrestees do indeed have

a privacy interest concerning their underlying convictions and

arrests.” Id. at 51 (citing Reporters Comm., 489 U.S. at 762

n.13). The court, however, concluded that those privacy

interests were diminished because the information concerning

their convictions and arrests was already in the public domain.

Id. at 53 (“[A]lthough the arrestees have a cognizable privacy

interest in their names, that interest is attenuated both by the

status of their underlying convictions and arrests as matters of

public record and by the limited nature of the Union Leader’s

proposed investigation.”). After balancing those diminished

interests against what the court concluded was a valid public

interest in disclosure proffered by the plaintiff, the court

held that Exemption 7(C) was inapplicable. Id. at 56.

Union Leader does not weigh in favor of disclosure here.

Contrary to Villar’s assertion, Union Leader does not adopt a

19 broad rule “that the privacy interests of arrestees are less

than that of ordinary citizens.” Doc. no. 45 at 6. Rather,

Union Leader holds that arrestees possess a diminished privacy

interest in information about their arrests and criminal

convictions, because that information is a matter of public

record. Id. at 55. Here, Villar points to no specific

information that he seeks that is already in the public record,

and a review of the FBI’s Vaughn index demonstrates that much of

the withheld information is likely nonpublic. For example, the

FBI has withheld information detailing third-party interviews

with its agents, information about the investigation into

Villar’s co-conspirators (neither of whom ever had public

trials), and other internal FBI memoranda.

Harrington and Villar’s two co-conspirators have a

legitimate privacy interest in preventing the disclosure of this

nonpublic material. Carpenter, 470 F.3d at 439 (concluding that

even if a person’s identity is known it is “a further invasion

of [that person’s] protected privacy interest to positively

identify him with a given criminal matter and reveal the records

or information that he provided”); Burge v. Eastburn, 934 F.2d

577, 579–80 (5th Cir. 1991) (concluding that trial witnesses had

privacy interest in not revealing the nonpublic information they

provided to investigators).

20 Moreover, to the extent there is any publicly available

information in the withheld material, that information is still

exempt from disclosure under Exemption 7(C). That is because,

as discussed in detail below, Villar has not demonstrated a

legitimate public interest favoring disclosure that could

outweigh even a diminished privacy interest in the withheld

material. See Maynard, 986 F.2d at 566 (“Plaintiff here has

failed to suggest how the disclosure of the names would reveal

what the government is up to. We need not, therefore, dwell

upon the balance between privacy and public interests: something

outweighs nothing every time.” (internal quotation marks and

alterations omitted)). Therefore, the fact that Harrington and

Villar’s co-conspirators are arrestees does not weaken their

respective privacy interests to the point where disclosure is

warranted.

Villar also contends that the FBI cannot assert the privacy

interests on behalf of his co-conspirators because each of them

waived those interests when pleading guilty to offenses related

to the bank robbery. In support, Villar relies on a provision

in his co-conspirators plea agreements, in which they agreed to

waive “all rights . . . to request or receive from any

department or agency of the United States any records pertaining

to the investigation or prosecution of this case, including

21 without limitation any records that may be sought under the

Freedom of Information Act, 5 U.S.C. § 552, or the Privacy Act

of 1974, 5 U.S.C. § 552a.” See United States v. Joshua Gagnon,

06-CR-85-PB-02, Doc. no. 28 at 12 (D.N.H.); United States v.

Dedra Scott, 06-CR-85-PB-03, Doc. no. 46 at 12 (D.N.H.). Under

the plain terms of the provision on which Villar relies, his co-

conspirators waived the right to request documents under FOIA,

not the privacy rights that FOIA protects. Accordingly,

Villar’s waiver theory fails.

Therefore, the court concludes that the FBI has demonstrated

a valid privacy interest on behalf of the private third parties

mentioned in the withheld documents.

b. Law Enforcement and Government Officials

and identifying information of law enforcement personnel and

government officials, including FBI special agents and support

personnel, local and state law enforcement personnel, and non-

FBI federal government personnel. In support of the asserted

privacy interest, Hardy contends in his second declaration that

disclosing the identity of these government employees to the

public would expose them to harassment and potential reprisal.

In response, Villar argues that government officials possess a

diminished privacy interest in protecting their identities.

22 The First Circuit has held that law enforcement and other

government personnel possess significant privacy interests in

not having their names or involvement in a criminal

investigation revealed. Moffat, 716 F.3d at 251–52 (concluding

that FBI properly withheld information about FBI personnel and

characterizing privacy interests at stake as “substantial”);

Maynard, 986 F.2d at 566 (upholding refusal to disclose names of

FBI agents and support personnel because those individuals “have

significant privacy interests in not having their names

revealed.”); Sensor Sys. Support, Inc. v. F.A.A., 851 F. Supp.

2d 321, 334–35 (D.N.H. 2012) (“Law enforcement personnel have

significant privacy interests in keeping their names or other

identifying information from being generally disclosed.”). The

First Circuit has explained that recognition of this privacy

interest is appropriate because:

One who serves his state or nation as a career public servant is not thereby stripped of every vestige of personal privacy, even with respect to the discharge of his official duties. Public identification of any of these individuals could conceivably subject them to harassment and annoyance in the conduct of their official duties and in their private lives.

New England Apple Council v. Donovan, 725 F.2d 139, 142 (1st

Cir. 1984) (quoting Miller v. Bell, 661 F.2d 623, 630 (7th Cir.

1981), abrogated in part on other grounds by U.S. Dep’t of

Justice v. Landano, 508 U.S. 165, 181 (1993)).

23 Villar, however, cites Perlman v. U.S. Dep't of Justice, 312

F.3d 100, 103 (2d Cir. 2002), cert. granted, judgment vacated

sub nom. Perlman v. Dep't of Justice, 541 U.S. 970 (2004). In

Perlman, the Second Circuit explained that while government

employees possess a “somewhat diminished” privacy interest, they

do “not surrender all rights to personal privacy.” Perlman, 312

F.3d at 107. To the extent Perlman holds that government

employees do not maintain a significant privacy interest, it

contradicts First Circuit precedent and is, therefore, not

applicable here. Moreover, as explained above, even if the

government employees in this case possess a diminished privacy

interest, disclosure is still not warranted because Villar has

not demonstrated any public interest in favor of disclosure that

would outweigh even a diminished privacy interest. Therefore,

Perlman does not support disclosure of the identity of

government agents here.

Accordingly, the court finds that the law enforcement

personnel and government agents referenced in Villar’s FBI file

possess a privacy interest in not having their identities

revealed.

2. Public Interest in Disclosing Information

Villar argues that there is a public interest in obtaining

information that could “corroborate his claim of innocence.”

24 Doc. no. 45 at 9. Specifically, Villar contends that the

information he seeks could show that the government failed to

disclose evidence that it provided benefits to Harrington in

exchange for her trial testimony. In response, the government

asserts that Villar’s assertions are too speculative to

establish a public interest in disclosure.

As discussed above, because the FBI has asserted legitimate

privacy interests, Villar must show “(1) that there is a

‘significant’ public interest in disclosure, and (2) that the

requested information is ‘likely to advance that interest.’”

“Whether an invasion of privacy is unwarranted will ‘turn on the

nature of the requested document and its relationship to the

basic purpose of the [FOIA] to open agency action to the light

of public scrutiny.’” Carpenter, 470 F.3d at 440 (quoting

Reporters Comm., 489 U.S. at 772).

“[T]he innocence or guilt of a particular defendant tells

the [c]ourt nothing about matters of substantive law enforcement

policy that are properly the subject of public concern.”

Moffat, 716 F.3d at 252 (quoting Carpenter, 470 F.3d at 441).

“But this is not to say that information requested by a criminal

defendant may never implicate the public interest.” Id.

Rather, a FOIA requester challenging his or her conviction must

25 “connect his deeply personal stake in [the requested]

information to a larger governmental function.” Moffat, 716

F.3d at 252.

For example, a disclosure that “could shed light on

possible government misconduct” could serve the public interest.

Carpenter, 470 F.3d at 441. When such an interest is asserted,

however, “‘the requester must establish more than a bare

suspicion in order to obtain disclosure.’” Id. (quoting Favish

541 U.S. at 174). “Rather, ‘the requester must produce evidence

that would warrant a belief by a reasonable person that the

alleged Government impropriety might have occurred.’” Id.

(quoting Favish 541 U.S. at 174).

In support of his claim that the government provided

undisclosed benefits to Harrington in exchange for her

testimony, Villar points to evidence that an FBI special agent

and a prosecutor declined to arrest Harrington at a pre-trial

interview after she informed them that there could be a warrant

out for her arrest. At Villar’s trial, Harrington testified

that she informed the prosecutor and the agent that there could

be an arrest warrant for her stemming from her failure to appear

in court to answer drug charges in Massachusetts. Doc. no. 24-1

at 36, 48-49. Harrington further testified that the agent did

not arrest her because she was scheduled to enter a

26 rehabilitation facility the following day. Id. at 36.

Harrington also testified that she intended to resolve the issue

concerning her failure to appear for court. Id.

Prior to his cross examination of Harrington, Villar’s

counsel requested the disclosure of any benefits that the

government provided Harrington in exchange for her testimony.

In response, the prosecutor informed the court that all Jencks

and Giglio material had been provided to Villar’s counsel and

further stated that “we have nothing to do whatsoever with her

rehab.” Doc. no. 24-1 at 45.

Villar presents no evidence—beyond naked speculation—that

the government’s representations during his criminal trial were

false. Further, Villar points to no authority, and the court is

aware of none, that requires federal agents to execute an arrest

warrant, particularly one originating from a different

jurisdiction. Rather, law enforcement traditionally has

discretion in deciding whether to arrest someone when it has

legal authority to do so. See Town of Castle Rock, Colo. v.

Gonzales, 545 U.S. 748, 760–61 (2005) (observing that there is a

“well established tradition of police discretion” when deciding

whether to execute legal authority to arrest a person); Robinson

v. Lioi, 536 F. App'x 340, 345 (4th Cir. 2013) (noting that “a

police officer has discretion in the execution of arrest

27 warrants” (citing Castle Rock, 545 U.S. at 764)). Moreover,

Harrington’s scheduled treatment in a rehabilitation facility

the next day is a plausible reason why the agent declined to

arrest her. In short, there is no evidence in the record “that

would warrant a belief by a reasonable person that the alleged

Government impropriety might have occurred.” Carpenter, 470 F.3d

at 442 (internal quotation marks omitted). Therefore, Villar

has not demonstrated that a valid public interest supports

disclosure.

Because no valid public interest favoring disclosure has

been shown, the legitimate privacy interests that the FBI has

asserted preclude disclosure of the documents at issue.

Accordingly, the FBI properly withheld the material containing

information about third parties under Exemption 7(C).

B. Exemption 7(D)

The FBI withholds material that, it contends, will disclose

the names and identifying data of confidential sources, as well

as the information provided by those sources. In response,

Villar argues that the FBI has failed to demonstrate that the

sources at issue were confidential sources under the statute.

Villar also argues that the FBI cannot raise Exemption 7(D)

because it failed to raise that exemption in its administrative

response to him.

28 Exemption 7(D) to FOIA exempts from “disclosure agency

records ‘compiled for law enforcement purposes . . . by criminal

law enforcement authority in the course of a criminal

investigation’ if release of those records ‘could reasonably be

expected to disclose’ the identity of, or information provided

by, a ‘confidential source.’” Landano, 508 U.S. at 167 (quoting

§ 552(b)(7)(D)). “Unlike under 7(C), if the government

demonstrates that the information requested was given under an

assurance of confidentiality, 7(D) does not require a further

showing that privacy interests outweigh any public interest in

disclosure.” Moffat, 716 F.3d at 252-53. “Thus, Exemption 7(D)

provides greater protection to a narrower class of persons than

does 7(C).” Id. (internal quotation marks omitted).

1. Waiver of Exemption

In his objection to the FBI’s original motion for summary

judgment, Villar argued that the FBI waived its right to assert

Exemption 7(D) because it did not raise those exemptions in its

administrative response to him. The court rejected this theory

in its order disposing the parties’ original motions for summary

judgment. In doing so, the court concluded that an “agency

cannot ‘waive’ its right to invoke an exception prior to suit.”

Doc. no. 53 at 18 (quoting Hodes v. U.S. Dep’t of Hous. & Urban

Dev., 532 F. Supp. 2d 108, 114 n.2 (D.D.C. 2008) and citing

29 Adamowicz v. I.R.S., 552 F. Supp. 2d 355, 361 n.2 (S.D.N.Y.

2008)).

To the extent Villar intended to raise this argument again

by incorporating his response to the FBI’s original motion for

summary judgment, that argument fails. Villar has presented no

argument as to why the court should reconsider his waiver

theory. Therefore, the court denies Villar’s motion for summary

judgment to the extent it relies on the waiver theory.

2. Confidentiality of Source

Here, the FBI contends that two of the sources it is

protecting were operating under express grants of

confidentiality, while the rest were operating under implied

grants of confidentiality. In response, Villar contends that

the FBI has not adequately demonstrated that a grant of express

confidentiality existed for the sources.

a. Express Grants of Confidentiality

Where an agency asserts that a source provided information

under an express grant of confidentiality, “it is required to

come forward with probative evidence that the source did in fact

receive an express grant of confidentiality.’” Dorsey v. Exec.

Office for United States Attorneys, 83 F. Supp. 3d 347, 356

(D.D.C. 2015) (quoting Davin v. U.S. Dep't of Justice, 60 F.3d

30 1043, 1061 (3d Cir. 1995)), aff'd in part, remanded in part sub

nom. Dorsey v. Exec. Office for U.S. Attorneys, No. 15-5104,

2016 WL 1272941 (D.C. Cir. Feb. 10, 2016).

In support of its argument that the two sources at issue

were provided express assurances of confidentiality, the FBI

relies on the second Hardy declaration. In that declaration,

Hardy states that the FBI provided both sources with an express

grant of confidentiality. As further evidence in support of

that assertion, Hardy asserts that the FBI paid one source for

his or her assistance “as a non-source symbol numbered

informant.” Doc. no. 43-2 at ¶ 72.7 Hardy further asserts that

this source’s name was annotated with the words “Protect

Identity” after their name in internal FBI documents. Id.

As for the other source, Hardy states that this source

expressly asked for confidentiality. In addition, Hardy attests

that the FBI also used the words “Protect Identity” next to this

source’s name in its investigatory records.

Based on this evidence, the court concludes that both

sources were provided express grants of confidentiality.

7 Hardy explains in his second declaration that a source symbol number is provided to individuals providing information over an extended period.

31 b. Implied Grants of Confidentiality

In support of its assertion that the remaining sources

provided information under an implied assurance of

confidentiality, the FBI points to the violent nature of the

crime at issue and the sources’ role in providing information

that led to the indictment.

Although not every source who provides information to the

FBI is a “confidential” source under Exemption 7(D), the

government may point to circumstances that support an inference

that a source was cooperating under an implied assurance of

confidentiality. Landano, 508 U.S. at 179. In doing so, the

relevant question is “whether the particular source spoke with

an understanding that the communication would remain

confidential.” Sandoval v. U.S. Dep't of Justice, No. CV 16-

1013 (ABJ), 2017 WL 5075821, at *12 (D.D.C. Nov. 2, 2017)

(quoting Landano, 508 U.S. at 172). In determining whether such

an understanding was present, courts have “examin[ed] factors

such as the nature of the crime and the source’s relation to

it.” Landano, 508 U.S. at 179.

Based on those factors, courts have generally concluded

that “[c]rimes involving violence and the risk of retaliation

warrant an implied grant of confidentiality.” Island Film, S.A.

v. Dep't of the Treasury, 869 F. Supp. 2d 123, 137 (D.D.C. 2012)

32 (citing cases). In that same vein, courts have found that

sources who provide information about armed robbery do so under

an implied grant of confidentiality. Thomas v. U.S. Dep't of

Justice, 531 F. Supp. 2d 102, 111–12 (D.D.C. 2008) (violent

nature of bank robbery warranted finding of implied grant of

confidentiality); Meserve v. U.S. Dep't of Justice, No. CIV.A.

04-1844 (RBW), 2006 WL 2366427, at *9 (D.D.C. Aug. 14, 2006)

(finding implied grant of confidentiality for sources who

provided information about an armed robbery).

In addition, the case for finding an implied grant of

confidentiality is greater when the source has been able to

provide information about the crime that is “singular in

nature,” meaning that it is “the kind of information that, if it

were revealed to the public, could be traced to a particular

source.” Labow v. U.S. Dep't of Justice, 831 F.3d 523, 531–32

(D.C. Cir. 2016); see also 3 Federal Information Disclosure §

17:102 (citing Labow and making the same point).

In his second declaration, Hardy asserts that the sources

“provided assistance and valuable information specific in nature

throughout the armed bank robbery investigation,” and that their

assistance helped lead to the indictment of Villar and his co-

conspirators. Doc. no. 43-2 at ¶ 74. Hardy further asserts

that the sources provided information that was “singular in

33 nature, and if released could reveal their identities.” Id. at

¶ 70. Hardy also asserts that “[a]ll of the individuals could

reasonably fear that disclosure of their identities would place

them in danger of possible retaliation, harassment, and/or could

reasonably be expected to cause them physical harm, especially

due to the violent nature of the crime under investigation.”

Id. at ¶ 75.

Based on the foregoing statements, the court concludes that

the sources at issue were operating with an understanding that

their participation would remain confidential. Therefore, the

information identifying those sources and the information they

provided is exempt from disclosure.

C. Exemption 7(E)

Pursuant to Exemption 7(E), the FBI has withheld material

that it contends would reveal nonpublic investigative techniques

and procedures or nonpublic aspects of its known investigative

techniques and procedures. In support, the FBI argues that this

information is exempt from FOIA because its disclosure would

allow criminals to circumvent the law. The only argument that

Villar raises in objection to the application of Exemption 7(E)

is his argument that the FBI waived its right to assert that

exemption because it did not raise the exemption in its

34 administrative response to him. As discussed above, however,

the court has rejected that theory.

Exemption 7(E) exempts from FOIA’s disclosure requirement

all agency “records of information compiled for law enforcement

purposes, but only to the extent that the production of such

[records]. . . 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). To

withhold records containing information about techniques or

procedures under Exemption 7(E), the agency must show “(i) that

the withheld records or information would disclose techniques

and procedures for law enforcement investigations and (ii) that

their disclosure would reasonably risk circumvention of the

law.” Sack v. U.S. Dep't of Def., 823 F.3d 687, 694 (D.C. Cir.

2016).8

8 Other circuit courts of appeal have concluded that the circumvention of law requirement “applies only to guidelines for law enforcement investigations or prosecutions, not to techniques and procedures.” Am. Civil Liberties Union of N. California v. United States Dep't of Justice, 880 F.3d 473, 491 (9th Cir. 2018); Allard K. Lowenstein Int'l Human Rights Project v. Dep't of Homeland Sec., 626 F.3d 678, 681–82 (2d Cir. 2010). The First Circuit has not addressed this issue. Because the FBI has demonstrated that the release of the techniques and procedures at issue here would indeed risk the circumvention of

35 When assessing whether an agency has demonstrated that

disclosure would risk the circumvention of law, courts:

Look[] not just for circumvention of the law, but for a risk of circumvention; not just for an actual or certain risk of circumvention, but for an expected risk; not just for an undeniably or universally expected risk, but for a reasonably expected risk; and not just for certitude of a reasonably expected risk, but for the chance of a reasonably expected risk.

Blackwell v. F.B.I., 646 F.3d 37, 42 (D.C. Cir. 2011) (internal

quotation marks omitted). Accordingly, to withhold documents

pursuant to Exemption 7(E), the FBI need not meet a highly

specific burden, but rather must “demonstrate logically how the

release of the requested information might create a risk of

circumvention of the law.” Id.

Here, the FBI has withheld information about bank security

measures, its modus operandi tracking, its collection and

analysis of information, statistical ratings of its

investigative techniques, and certain monetary payments that it

made for investigative purposes. The FBI contends that this

information must be withheld because its disclosure will risk

the circumvention of law.

law, the court need not consider whether the circumvention of law requirement applies to all records in Exemption 7(E)’s ambit.

36 1. Bank Security Measures

The FBI withheld information providing details about the

various security measures that were at the bank, including

surveillance equipment, other security devices, and bait money,

which is money that the FBI uses to track criminals following

the commission of a robbery. In his second declaration, Hardy

asserts that the withheld material provides details about the

types of security measures present at the robbery, how they were

implemented, and where they were located. Hardy further asserts

that if this information were disclosed, would-be criminals

could use it to devise countermeasures to avoid bank security.

Courts have generally held that information about bank

security measures is exempt from FOIA disclosure under Exemption

7(E) because revealing such information would risk the

circumvention of law. See, e.g., Ford v. Dep't of Justice, 208

F. Supp. 3d 237, 254 (D.D.C. 2016) (bank surveillance video

properly withheld under Exemption 7(E)); Maguire v. Mawn, No.

02-2164, 2004 WL 1124673, at *3 (S.D.N.Y. May 19, 2004)

(concluding that information about bait money exempt); Rivera v.

FBI, No. 98-0649, slip op. at 9-10 (D.D.C. Aug. 31, 1999)

(holding that information about bank security measures is exempt

under Exemption 7(E)); Dayton Newspapers, Inc. v. FBI, No. C-3-

85-815, 1993 WL 1367435, at *6 (S.D. Ohio Feb. 9, 1993)

37 (concluding that agency properly withheld details of bank

security devices and equipment used in bank robbery

investigation); Malloy v. U.S. Dep't of Justice, 457 F. Supp.

543, 545 (D.D.C. 1978) (approving withholding of information

about bank security devices and bait money).

The court finds the reasoning of these cases persuasive.

Accordingly, the FBI has satisfied its burden of demonstrating

that the disclosure of the information at issue could risk the

circumvention of law. Therefore, the information concerning

bank security measures was properly withheld.

2. Modus Operandi Tracking

The FBI redacted information in one page detailing the bank

robbery techniques it tracks as markers of a criminal’s modus

operandi. In his second declaration, Hardy asserts that

disclosing the variety of robbery techniques that it tracks in

connection with its modus operandi summaries “would give

criminals additional techniques to possible [sic] use in future

robberies.” Doc. no. 43-2 at ¶ 81. The court finds that the

FBI has logically demonstrated why disclosure of the modus

operandi summaries would risk a circumvention of the law.

38 3. Collection and Analysis of Information

The FBI redacted material from two pages detailing the

methods it uses to collect and analyze the information it

obtains for investigative purposes. In his second declaration,

Hardy contends that disclosing this information would provide

criminals knowledge of these FBI techniques, including when

specific techniques are used, and the usefulness of the

information obtained from them. Hardy further asserts that this

knowledge would allow criminals to deploy countermeasures that

limit the effectiveness of the techniques.

The court agrees that criminals, armed with the knowledge

of these investigative techniques, could develop methods to

counter the techniques’ effectiveness and thereby circumvent the

law. Courts that have considered whether such information

qualifies for exemption under Exemption 7(E) have come to the

same conclusion. Shapiro v. Cent. Intelligence Agency, 247 F.

Supp. 3d 53, 71–72 (D.D.C. 2017) (holding that information

concerning collection and analysis methods is exempt from

disclosure); Johnson v. Fed. Bureau of Investigation, No. CV 14-

1720, 2016 WL 5162715, at *6 (E.D. Pa. Sept. 21, 2016) (same).

Therefore, the FBI has demonstrated that disclosing information

about its collection and analysis methods could risk

circumvention of the law.

39 4. Statistical Information

The FBI redacted portions of FD-515s (its form for tracking

certain law enforcement milestones) which contain statistical

ratings of the effectiveness of over 40 publicly known

investigative techniques. Hardy asserts that disclosure of this

information would risk circumvention of law because this

information could allow criminals to “change their activities

and modus operandi in order to circumvent and avoid detection

and/or surveillance in the future.” Doc. no. 43-2 at ¶ 83.

Hardy also states that “[b]y understanding which techniques are

the most effective, criminals have knowledge of the techniques

they need most to avoid in order not to be apprehended.” Id.

These assertions sufficiently demonstrate that disclosure

of the statistical ratings would risk the circumvention of law.

See Frankenberry v. F.B.I., 567 F. App'x 120, 125 (3d Cir. 2014)

(affirming district court’s finding that statistical ratings

could be withheld under Exemption 7(E)); Westmoreland v. Fed.

Bureau of Investigation, No. CV 13-2058(CKK), 2015 WL 5063181,

at *6 (D.D.C. Aug. 26, 2015) (permitting the FBI to redact

statistical rating information about investigative techniques);

Rosenberg v. U.S. Dep't of Immigration & Customs Enf't, 959 F.

Supp. 2d 61, 80 (D.D.C. 2013) (same). Accordingly, the FBI

40 properly redacted the statistical ratings from the FD-515s in

Villar’s file.

5. Monetary Payments

The FBI redacted information in three pages of an internal

communication, which detailed a request for a payment to a

source. Hardy asserts that the redacted information contains

details about the amount paid to the source and the

justifications supporting that payment. In support of his

assertion that this information is exempt, Hardy contends that

“[r]evealing the amount of money the FBI has paid (or it plans

to pay for particular aspects of an investigation) would reveal

the FBI’s level of focus on certain types of law enforcement or

intelligence gathering efforts.” Although this reasoning

presents an attenuated connection to potential circumvention of

law, the court nevertheless concludes that the risk is logical

enough for the FBI to meet its burden under Exemption 7(E).

Disclosing the amount of the payment and the justifications

for that payment would likely reveal strategic decisions

underlying the FBI’s law enforcement methods. Poitras v. Dep't

of Homeland Sec., No. CV 15-1091 (BAH), 2018 WL 1702392, at *13

(D.D.C. Mar. 29, 2018) (concluding that FBI properly withheld

information about the amount of money it used to implement

certain investigative techniques because disclosing such

41 information would “reveal sensitive strategic decisions made by

the FBI”); see also Johnson v. Fed. Bureau of Investigation, No.

CV 14-1720, 2016 WL 5162715, at *6 (E.D. Pa. Sept. 21, 2016)

(concluding that the FBI properly withheld information about

monetary payments). Were this strategic information to be

disclosed, criminals would have knowledge from which they could

infer how much resources the FBI devotes to certain crimes or in

certain situations. This, in turn, could result in criminals

changing their activities to reduce the risk of apprehension.

Accordingly, the FBI properly withheld information concerning

the monetary payments made for investigative techniques, which

it asserted under Exemption 7(E).

III. Segregability

The FBI contends that it has satisfied its burden of

demonstrating segregability by providing a more detailed Vaughn

index and a declaration that attests that it has released all

segregable material. In response, Villar argues that the FBI

“fails to explain its conclusions that each withheld document

contains no segregable, disclosable material . . . .” In

addition, Villar challenges the FBI’s withholding in full of

several pages under Exemptions 7(C) and 7(D) based on their

references to third parties. Villar argues that those pages

“could [have been] provided with identification of the [FBI

42 agents] and third party individuals redacted . . . .” Doc. no.

56-1 at 2.

FOIA requires that “any reasonably segregable portion of a

record shall be provided to any person requesting such records

after deletion of the portions which are exempt under [section

552(b)].” Carpenter, 470 F.3d at 442–43 (quoting 5 U.S.C. §

552(b)). “Non-exempt information or materials may be withheld

only where it ‘is so interspersed with exempt material that

separation by the agency, and policing of this by the courts

would impose an inordinate burden.’” Id. (quoting Church of

Scientology Int'l, 30 F.3d at 228). Further, when an agency

properly invokes Exemption 7(C) or 7(D) to protect the identity

of an individual, it may withhold all information that could

reasonably be expected to disclose that individual’s identity.

See Boyd v. Exec. Office for United States Attorneys, 161 F.

Supp. 3d 1, 11 (D.D.C. 2015), aff'd by Court of Appeals, No. 16-

5133, 2016 WL 6237850 (D.C. Cir. Sept. 16, 2016) (“[W]here a

person's identity might be revealed based on the content of the

document, courts have permitted agencies to withhold the records

in their entirety under Exemption 7(C)”); 5 U.S.C. §

552(b)(7)(D) (exempting information or records that “could

reasonably be expected to disclose the identity of a

confidential source”).

43 “An agency bears the burden of demonstrating that all

reasonably segregable portions of a record have been disclosed,

and may do so by ‘offering an affidavit with reasonably detailed

descriptions of the withheld portions of the documents and

alleging facts sufficient to establish an exemption.’”

Competitive Enter. Inst. v. U.S. Dep't of Treasury, No. CV 12-

1838-RMC, 2018 WL 1587468, at *6 (D.D.C. Apr. 2, 2018) (quoting

Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th

Cir. 2008)).

In his second declaration, Hardy asserts that “[e]very

effort was made to provide plaintiff with all material in the

public domain and with all reasonably segregable, non-exempt

information in the responsive records.” Doc. no. 43-2 at ¶ 54.

Hardy further attests that “[n]o reasonably segregable,

nonexempt portions have been withheld from plaintiff.” Id.

Although in its order on the parties’ first motions for summary

judgment, the court concluded that these assertions were

conclusory, the FBI, through its second Vaughn index, has

provided more detail to support them. As discussed above, each

entry in the new Vaughn index contains a segregability analysis

which identifies and describes the withheld material in each

document and provides a reason why that material is exempt from

44 After reviewing these entries and the coded documents that

the FBI provided to Villar, the court is satisfied that the FBI

conducted a proper segregability analysis. Many of the pages of

documents released to Villar were released in part, in redacted

form. These documents contain pinpoint redactions, which are

narrow in scope and only excise the exempt material, such as the

names or other identifying information of law enforcement

personnel or third parties. These targeted redactions support

Hardy’s assertion that the FBI conducted a detailed

segregability analysis. Sennett v. Dep't of Justice, 962 F.

Supp. 2d 270, 279–80 (D.D.C. 2013).

Further, for pages withheld in full the FBI has

sufficiently explained what the withheld material is and why

withholding it is justified under FOIA. For most of the pages,

the FBI has explained that any nonexempt information is so

intertwined with exempt material that no information could be

reasonably segregated for release and any effort to do so would

produce disjointed words, phrases, or sentences that provide no

informational value. In addition, the FBI has explained that it

was necessary to withhold several pages in full because they

contain information that would likely disclose the identity of a

third party whose privacy is protected under an exemption.

45 Based on its review of the FBI’s submission, including the

careful redactions in the pages that it released to Villar, the

court credits the FBI’s assertion that it conducted a proper

segregability analysis on these documents.

In doing so, the court rejects Villar’s argument that the

FBI improperly withheld several pages to protect the identities

of third parties because the agency could have simply redacted

the names of those parties. The subjects of the pages that

Villar challenges relate specifically to third parties. For

example, many of the pages detail the assistance that sources or

other parties provided the agency or summarize important

investigation milestones about suspects other than Villar. It

is a reasonable inference, as the FBI contends, that disclosing

the highly-personalized information contained in these documents

would likely reveal the identity of the third-party subjects of

those documents. Therefore, the court concludes that the FBI

properly withheld in full the pages that Villar challenges.

Accordingly, the court concludes that the FBI conducted an

appropriate segregability analysis for the material that it

withheld.

46 IV. In Camera Review

Villar contends that the court should not grant summary

judgment because it should first review the documents in camera.

Villar does not specify which documents he believes warrant in

camera review.

In camera review is designed for situations where the

“agency affidavits [are] ‘too generalized to establish

eligibility for an exemption.’” Maynard, 986 F.2d at 557

(quoting Church of Scientology, 611 F.2d at 742). Moreover, “in

camera review is particularly appropriate when the documents

withheld are brief and limited in number.” Id. In other words,

“full in camera reviews are appropriate in cases involving a

very limited number of relatively brief documents.” Id.

(quoting Ingle v. Dep’t of Justice, 698 F.2d 259, 264 (6th Cir.

1983)).

Here, the FBI’s affidavit sufficiently demonstrates its

entitlement to the claimed exemptions. Further, the volume of

pages at issue in this case makes it inappropriate for a full in

camera review. The court declines to conduct an in camera

review here.

47 CONCLUSION

For the foregoing reasons, the court grants the FBI’s

motion for summary judgment (doc. no. 55) and denies Villar’s

motion for summary judgment (doc. no. 56). The clerk of court

shall enter judgment accordingly and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge July 23, 2018

cc: Counsel of Record