Sellers v. U.S. Department of Justice

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FREDRICK SELLERS,

Plaintiff,

v. Civil Action No. 08-0840 (HHK)

U.S. DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION,

Defendant.

MEMORANDUM OPINION

This action is brought under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”).

Before the Court is defendant’s motion for summary judgment. Having considered the motion,

plaintiff’s opposition thereto, and the record of this case, the Court concludes that the motion

should be granted.

I. BACKGROUND

The Federal Bureau of Investigation (“FBI”) began an investigation into plaintiff’s

criminal activities in March 2001, focusing primarily on alleged drug and firearms violations.1

Mem. of P. & A. in Supp. of Defs.’ Mot. for Summ J. (“Defs.’ Mem.”), Decl. of David M. Hardy

(“Hardy Decl.”) ¶ 5. “Further investigation by the Pee Dee Violent Crime Task Force, Florence,

South Carolina, developed information which established plaintiff as the subject in the

1 For convenience, in this Memorandum Opinion the Court will refer to the defendant as the “FBI.” As the parties have acknowledged, see Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 4; Defs.’ Mot. for Summ. J. at 1 n.1, the proper party defendant is the United States Department of Justice. investigation of the kidnaping and murder of Larry Lovie Bristow on December 30, 1998” and,

thereafter, “the FBI determined that an interstate element existed in the kidnaping and murder of

[Mr.] Bristow.” Id. On September 21, 2001, plaintiff was found guilty in the United Sates

District Court for the District of South Carolina of conspiracy to distribute controlled substances,

firearms violations, and kidnaping. Id. ¶ 6. On May 23, 2002, he was sentenced to a term of life

imprisonment. Id.

In May 2007, plaintiff submitted a FOIA request to the FBI’s Washington, D.C.

headquarters (“FBIHQ”) seeking information about himself, particularly “data or information . . .

related to and/or generated by the criminal investigation and prosecution of [plaintiff] by federal

authorities in and around the U.S. Federal District[] of Florence, South Carolina . . . from January

1995 until the present time.”2 Compl., Ex. A (May 7, 2007 Freedom of Information/Privacy Acts

Request) at 1.

The FBI informed plaintiff that it located 430 pages of records potentially responsive to

his request, Compl. at 2, and that only the first 100 pages would be released free of charge. Id.,

Ex. C (July 5, 2007 letter from D.M. Hardy, Section Chief, Record/Information Dissemination

Section, Records Management Division, FBIHQ, regarding Request No. 1079977-000).

Accordingly, the FBI released 100 pages of records after having redacted information under

FOIA Exemptions 2, 6, 7(C), and 7(E). Id., Ex. D (July 30, 2007 letter from D.M. Hardy) at 1.

2 It appears that plaintiff sent identical FOIA requests to FBIHQ and to the FBI’s Columbia, South Carolina Field Office (“COFO”). Hardy Decl. ¶ 7 & Ex. A (May 17, 2007 FOIA Requests). FBI staff forwarded the COFO request to FBIHQ, and the requests were consolidated and assigned a single tracking number, FOIPA Request Number 1079977. Id. ¶ 8 & Ex. B (June 4, 2007 letters from D.M. Hardy, Section Chief, Record/Information Dissemination Section, Records Management Division, FBIHQ).

2 The FBI informed plaintiff that there were approximately 295 additional pages available for

processing and that it would process these records if plaintiff agreed to pay a fee of $.10 per page

for duplication. Id. at 2. After plaintiff agreed in writing to pay these duplication fees, see

Compl. at 2, FBI staff disclosed 112 pages of heavily redacted documents but refused to release

183 pages in their entirety. Id.; see id., Ex. J (January 8, 2008 letter from D.M. Hardy regarding

Request No. 1079977-001) at 1. Both decisions were upheld on administrative appeal. Compl.

at 2-3; see id., Ex. G, M (respectively, September 28, 2007, and March 31, 2008, letters from

J.G. McLeod, Associate Director, Office of Information and Privacy).

II. DISCUSSION

A. SUMMARY JUDGMENT IN A FOIA CASE

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

disclosure materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). The moving party bears the burden of demonstrating an absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the

moving party’s affidavits may be accepted as true unless the opposing party submits his own

affidavits, declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453,

456 (D.C. Cir. 1992).

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

provided in the government agency’s affidavits or declarations when these submissions describe

“the documents and the justifications for nondisclosure with reasonably specific detail,

demonstrate that the information withheld logically falls within the claimed exemption, and are

3 not controverted by either contrary evidence in the record [or] by evidence of agency bad faith.”

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Hertzberg v.

Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003). Such affidavits or declarations are accorded “a

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

existence and discoverability of other documents.’” SafeCard Servs., Inc. v. Sec. & Exch.

Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent.

Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

B. THE FBI’S SEARCH FOR RESPONSIVE RECORDS

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

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

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

State, 897 F.2d 540, 542 (D.C. Cir. 1990)); Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 27

(D.C. Cir. 1998). The agency bears the burden of showing that its search was calculated to

uncover all relevant documents. Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir.

1994). To meet its burden, the agency may submit affidavits or declarations that explain in

reasonable detail the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121,

126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are

sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. If the record

“leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is

not proper.” Truitt, 897 F.2d at 542.

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

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

4 mandated law enforcement responsibilities.” Hardy Decl. ¶ 25. “The CRS is organized into a

numerical sequence of files called FBI ‘classifications,’ which are broken down according to

subject matter,” and the subject matter may correspond to an individual, organization, activity, or

foreign intelligence matter. Id. Certain records in the CRS are maintained at FBIHQ; others

pertinent to a specific field office are maintained at that field office. Id. In order to search the

CRS, the FBI uses the Automated Case Support System (“ACS”). Id.

The ACS is “described as an internal computerized subsystem of the CRS.” Hardy Decl.

¶ 26. One cannot query the CRS for data, such as an individual’s name or social security

number, and to allow for such a query, “the required information is duplicated and moves to the

ACS so that it can be searched.” Id. Data is retrieved from the CRS through the ACS using

alphabetically arranged General Indices. Id. ¶ 27. There are two categories of General Indices:

“main” entries and “reference” entries. Id. The former category “carries the name corresponding

with a subject of a file contained in the CRS,” and the latter (also known as cross-references)

“generally [is] only a mere mention or reference to an individual . . . or other subject matter

contained in a document located in another ‘main’ file on a different subject matter.” Id.

There are “three integrated, yet separately functional, automated applications that support

case management functions for all FBI investigative and administrative cases[.]” Hardy Decl. ¶

29. They are the Investigative Case Management (“ICM”), Electronic Case File (“ECF”), and

Universal Index (“UNI”) applications. Id. ICM allows for the opening, assignment, and closing

of investigative and administrative cases, and for the assignment and tracking of leads. Id. ¶

29(a). When a case is opened, it is assigned a Universal Case File Number which is used by

FBIHQ and all field offices conducting or assisting in an investigation. Id. The first three digits

5 correspond to the classification for the type of investigation; a two-letter abbreviation indicates

the field office of origin; the last digits denote the individual case file number for a particular

investigation. Id.

ECF is the “central electronic repository for the FBI’s official text-based documents,”

Hardy Decl. ¶ 29(b), and UNI provides “a complete subject/case index to all investigative and

administrative cases.” Id. ¶ 29(c). The investigative Special Agent assigned to work on the

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

Supervisory Agent at FBIHQ determine whether to index names other than subjects, suspects,

and victims. Id. ¶ 30. Only information deemed “pertinent, relevant, or essential for future

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

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

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

individual.” Id.

Using plaintiff’s name as a search term, the FBI located no responsive records at FBIHQ,

and found one main investigative file, 7A-CO-26699, at its field office in Columbia, South

Carolina (“COFO”). Hardy Decl. ¶¶ 31-32. Of the 430 pages of records determined to be

responsive to plaintiff’s FOIA request, id. ¶ 32, the FBI released 358 pages in full or in part, and

withheld 72 pages in full. Id.; see id. ¶¶ 11, 18, 24.

Although plaintiff does not challenge the adequacy of the FBI’s for search for responsive

records, he objects to the timeliness of the search. He notes that “the FBI did not search for and

release the lion’s share of documents until after [he] filed the instant lawsuit.” Pl.’s Opp’n to

Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”) at 4. He asserts that the FBI “should have released the

6 documents when [he] submitted his [request rather than] wait[ing] until after litigation ha[d]

been initiated.” Id. at 5. Even if this were true, a delay in an agency’s search for records does

not render the search inadequate. See Perry, 684 F.2d at 127 (concluding that, based on agency

affidavits, “appellees’ search for the requested records, though belated, was reasonably complete

and thorough”).

C. THE EXEMPTIONS THE FBI ASSERTS AS A BASIS FOR NOT DISCLOSING REQUESTED INFORMATION

1. Exemption 7

Exemption 7 protects from disclosure “records or information compiled for law

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

enumerated harm. 5 U.S.C. § 552(b)(7); see Fed. Bureau of Investigation v. Abramson, 456 U.S.

615, 622 (1982). In order to withhold materials properly under Exemption 7, an agency must

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

material satisfies the requirements of one of the subparts of Exemption 7. See Pratt v. Webster,

673 F.2d 408, 413 (D.C. Cir. 1982). In assessing whether records are compiled for law

enforcement purposes, the “focus is on how and under what circumstances the requested files

were compiled, and whether the files sought relate to anything that can fairly be characterized as

an enforcement proceeding.” Jefferson v. Dep’t of Justice, 284 F.3d 172, 176-77 (D.C. Cir.

2002) (citations and internal quotations omitted).

Here, the FBI’s declarant describes the “investigatory records at issue” as “part of the

FBI’s CRS . . . compiled as a result of the FBI’s legitimate law enforcement activities.” Hardy

Decl. ¶ 33. The investigation pertained to the “plaintiff’s involvement in a kidnaping in which an

7 interstate element existed along with drug and federal firearms violations.” Id. ¶ 46. Plaintiff

does not dispute this characterization. The FBI thus meets the threshold requirement for

Exemption 7 by showing that the responsive records were compiled for law enforcement

purposes.

2. Exemption 7(C)3

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

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

U.S.C. § 552 (b)(7)(C). “To determine whether Exemption 7(C) applies, [courts] ‘balance the

privacy interests that would be compromised by disclosure against the public interest in release

of the requested information.’” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir.

2007) (quoting Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992)); see Beck v.

Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993).

Generally, the privacy interests of third parties mentioned in law enforcement files are

“substantial,” while “[t]he public interest in disclosure [of third-party identities] is not just less

substantial, it is insubstantial.” SafeCard Servs., Inc., 926 F. 2d at 1205. “[U]nless access to the

names and addresses of private individuals appearing in files within the ambit of Exemption 7(C)

is necessary in order to confirm or refute compelling evidence that the agency is engaged in

illegal activity, such information is exempt from disclosure.” Id. at 1206; see Nation Magazine

v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995).

3 The FBI’s “practice . . . is to assert Exemption (b)(6) in conjunction with Exemption (b)(7)(C). Hardy Decl. ¶ 45 n.8. Because the Court concludes that Exemption 7(C) applies, there is no need to consider the applicability of Exemption 6 with respect to the same information. See Simon v. Dep’t of Justice, 980 F.2d 782, 785 (D.C. Cir. 1994).

8 “[T]he only public interest relevant for purposes of Exemption 7(C) is one that focuses on

‘the citizens’ right to be informed about what their government is up to.’” Davis, 968 F.2d at

1282 (quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749,

773 (1989)). If the public interest alleged is government wrongdoing, then the requester must

“produce evidence that would warrant a belief by a reasonable person that the alleged

Government impropriety might have occurred.” Boyd v. Criminal Div. of the U.S. Dep’t of

Justice, 475 F.3d 381, 387 (D.C. Cir. 2007) (citing Nat’l Archives & Records Admin. v. Favish,

541 U.S. 157, 174 (2004)).

a. FBI Special Agents and Support Personnel

Under Exemption 7(C), the FBI withholds the names of and identifying information (such

as social security numbers and telephone numbers) about FBI Special Agents “responsible for

conducting, supervising, and/or maintaining reports related to the investigative activities

concerning plaintiff and others revealed in the documents at issue.” Hardy Decl. ¶ 48. Among

other actions, these agents interviewed cooperating witnesses and sources and reviewed materials

compiled during the course of the investigation. Id. Special Agents, the declarant explains, are

not assigned to a particular investigation by choice, and they “come into contact with all strata of

society, conducting searches and making arrests, both of which result in reasonable but

nonetheless serious disturbances to people and their lives.” Id. ¶ 49. “It is possible for an

individual targeted by such law enforcement actions to carry a grudge . . . for years,” such that

the release of the agents’ identities could subject them to reprisal. Id.

In addition, the FBI withholds the names of and identifying information about FBI

support personnel who “were assigned to handle tasks relating to the official investigation into

9 the activities of plaintiff and others.” Hardy Decl. ¶ 50. According to the declarant, these

support personnel are or were “in positions of access to information regarding official law

enforcement investigations, and therefore could become targets of harassing inquiries for

unauthorized access to investigations if their identities were released.” Id.

Similarly, the FBI withholds the names of and identifying information (including titles

and ranks) about “state and local law enforcement employees and emergency services

personnel.” Hardy Decl. ¶ 54. The declarant states that the release of their identities “could

subject them . . . to unnecessary and unwarranted harassment,” and they “could become prime

targets for compromise of the information in plaintiff’s case if their identities were disclosed.”

Id.

b. Third Parties

The FBI withholds the names of and identifying information about “individuals who were

interviewed by the FBI or [a] local law enforcement agency during the course of the investigation

of plaintiff and others.” Hardy Decl. ¶ 51. The declarant explains that interviews are productive

investigative tools. Id. ¶ 52. In order to surmount the interviewees’ fear of harassment,

intimidation, retaliation or physical harm if their identities were exposed, the FBI assures them

“that their names and personal identifying information will be held in the strictest confidence.”

Id. In addition, the FBI withholds the names of and identifying information (including addresses

and telephone numbers) about third parties who are merely mentioned in the responsive records,

id. ¶ 53, “the victim of a crime committed by plaintiff,” id. ¶ 56, and portions of an autopsy

report in order to protect the privacy interests of the decedent’s close relatives, id. ¶ 57. With

respect to the autopsy report, the FBI explains that “[p]ublic release of the results . . . could be

10 painfully disturbing to the surviving relatives,” and “could cause unsolicited and unnecessary

attention to be focused on [them].” Id. Lastly, the FBI withholds the names of and identifying

information about third parties who were of investigative interest to the FBI. Id. ¶ 55. In each

instance, the FBI’s declarant avers that these third parties’ substantial privacy interests outweigh

the minimal public interest in disclosure. See id. ¶¶ 49-50, 52-57.

Plaintiff argues that the FBI cannot justify its decision to withhold the identities of FBI

Special Agents who testified at his criminal trial or any information that has “already been

released into the public domain.” Id. Moreover, he argues that Exemption 7(C) no longer

applies because “the criminal investigation has come to a conclusion.” Id. Plaintiff’s position

cannot be sustained.

Even if plaintiff already knows the identities of trial witnesses, the agency’s decision to

withhold their names and other identifying information under Exemption 7(C) is justified. See,

e.g., Smith v. Bureau of Alcohol, Tobacco & Firearms, 977 F. Supp. 496, 500 (D.D.C. 1997). A

witness does not waive his or her interest in personal privacy by testifying at a public trial. See

Jones v. Fed. Bureau of Investigation, 41 F.3d 238, 247 (6th Cir. 1994) (concluding that a law

enforcement employee who chooses or is required to testify does not waive personal privacy);

Lardner v. U.S. Dep’t of Justice, No. 03-0180, 2005 WL 758267, at *19 (D.D.C. Mar. 31, 2005)

(concluding that the name of a witness who testified at public trial properly was withheld under

Exemption 7(C)). Such privacy interests do not diminish with the passage of time, see, e.g.,

Halpern v. Fed. Bureau of Investigation, 181 F.3d 279, 297 (2d Cir. 1999), and plaintiff cannot

argue persuasively that the many years since the investigation took place diminish these

individuals’ privacy interests in any way.

11 Plaintiff represents that he could use “the information that remains in the hands of the

Defendants . . . [to] vindicate himself and be exonerated of the criminal conviction that supports

his present sentence of [l]ife imprisonment.” Pl.’s Opp’n at 11. He appears to argue, then, that

his imprisonment, described as “the miscarriage of justice being affected in this case,” is a public

interest of such magnitude that it outweighs the third parties’ privacy interests. See id.

“The D.C. Circuit has consistently held that Exemption 7(C) protects the privacy interests

of all persons mentioned in law enforcement records, including investigators, suspects,

witnesses, and informants.” Fisher v. U.S. Dep’t of Justice, 596 F. Supp. 2d 34, 47 (D.D.C.

2009) (citing Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (citing

cases)); see Nation Magazine, 71 F.3d at 894 (acknowledging the “obvious privacy interest

cognizable under Exemption 7(C) in keeping secret the fact that they were subjects of a law

enforcement investigation[,]” and extending this interest “to third parties who may be mentioned

in investigatory files, as well as to witnesses and informants who provided information during the

course of an investigation”). However, “it is well established that an individual’s personal

interest in challenging his criminal conviction is not a public interest under FOIA because it

‘reveals little or nothing about an agency’s own conduct.’” Willis v. U.S. Dep’t of Justice, 581 F.

Supp. 2d 57, 76 (D.D.C. 2008) (quoting Reporters Comm., 489 U.S. at 773).

Moreover, individuals have a “strong interest in not being associated unwarrantedly with

alleged criminal activity,” Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 91-92 (D.C. Cir.

1984), and the courts “have consistently supported nondisclosure of names or other information

identifying individuals appearing in law enforcement records, including investigators, suspects,

witnesses, and informants.” Schrecker, 349 F.3d at 661 (citations omitted). The FBI properly

12 withholds the names of and identifying information about all the law enforcement officers and

support personnel, whether federal, state or local, and about the other third parties whose names

appear in the relevant law enforcement records. See, e.g., Sussman, 494 F.3d at 1115 (affirming

decision to withhold names, addresses, telephone numbers, social security numbers, and other

private information pertaining to law enforcement officials, other government employees, and

unnamed third parties).

3. Exemption 7(D)

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

enforcement purposes that:

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

5 U.S.C. § 552(b)(7)(D). “A source is confidential within the meaning of [Exemption] 7(D) if

the source provided information under an express assurance of confidentiality or in

circumstances from which such an assurance could reasonably be inferred.” Williams v. Fed.

Bureau of Investigation, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (citing U.S. Dep’t of Justice v.

Landano, 508 U.S. 165, 170-74 (1993)). There is no assumption that a source is confidential for

purposes of Exemption 7(D) simply because that source provides information to a law

enforcement agency in the course of a criminal investigation. See Landano, 508 U.S. at 181.

Rather, a source’s confidentiality must be determined on a case-by-case basis. Id. at 179-80.

a. Confidential Informants

In the course of the FBI’s investigation of plaintiff’s activities, its Special Agents “sought

13 the assistance of numerous informants to obtain information to aid the investigation,” and the

declarant states that these informants provided information under an implied grant of

confidentiality. Hardy Decl. ¶ 60. The case involved “a brutal homicide, possession of firearms,

distribution of illegal narcotics, and kidnaping,” and the sources “provided specific detailed

information linking those crimes to the plaintiff and his associates[,]” id. ¶ 62, resulting in the

arrest and conviction of plaintiff and other subjects based on information the informants

provided. Id. ¶ 63. Under these circumstances, the declarant states that the informants “have

ample reason to expect the highest level of confidentiality” because disclosure of their identities

or their statements “could subject them to violent reprisals.” Id. ¶ 62. Through their cooperation

with the FBI, the informants “have placed themselves in harm’s way should plaintiff or his

associates become aware of their cooperation[.]” Id. ¶ 63.

Plaintiff maintains that the FBI does not “demonstrate[] that these sources spoke under

condition of confidentiality.” Pl.’s Opp’n at 8. He argues that “[m]ost – if not all – the

informants and other ‘confidential sources’ have been revealed through judicial proceedings.”

Id.

An agency’s duty to disclose information pursuant to the FOIA does not relieve the

agency of its obligation to honor its agreements with confidential sources in order to protect their

identities and any information they provide in confidence. Exemption 7(D) not only protects

confidential sources, but also protects the ability of law enforcement agencies to obtain relevant

information from such sources. See McDonnell v. United States, 4 F.3d 1227, 1258 (3d Cir.

1993) (stating that the “goal of Exemption 7(D) is to protect the ability of law enforcement

agencies to obtain the cooperation of persons having relevant information and who expect a

14 degree of confidentiality in return for their cooperation”). “[O]nce an informant’s confidentiality

has been established, almost nothing can eviscerate Exemption 7(D) protection.” Reiter v. Drug

Enforcement Admin., No. 96-0378, 1997 WL 470108, at *6 (D.D.C. Aug. 13, 1997), aff’d, No.

97-5246, 1998 WL 202247 (D.C. Cir. Mar. 3, 1998). The exemption makes no mention of

waiver, and courts interpreting the exemption literally have held that “once the agency receives

information from a ‘confidential source’ during the course of a legitimate criminal investigation,

. . . all such information obtained from the confidential source receives protection.” Parker v.

Dep’t of Justice, 934 F.2d 375, 380 (D.C. Cir. 1991) (citing Lesar v. U.S. Dep’t of Justice, 636

F.2d 472, 492 & n.114 (D.C. Cir. 1980)) (emphasis added). Ultimately, protection of

information under Exemption 7(D) depends on whether the source spoke confidentially rather

than the “extent to which that source has already been revealed.” Lesar, 636 F.2d at 491.

Whether plaintiff already knows the informants’ identities and the information they provided to

law enforcement officers is not relevant to the analysis in this case.

In the alternative, plaintiff argues that the records at issue must be released under the

“public domain doctrine.” Pl.’s Opp’n at 9-10; see id. at 5-6. Because the requested information

“was plastered in the news media at the time of [the] incident and trial,” id. at 10, plaintiff argues

that there remain no privacy interests to protect.

Under the public domain doctrine, records which otherwise may be exempt from

disclosure under the FOIA “lose their protective cloak” if they have been “disclosed and

preserved in a permanent public record.” Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999).

“[W]here information requested ‘is truly public, then enforcement of an exemption cannot fulfill

its purposes.’” Id. (quoting Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16,

15 19 (D.C. Cir. 1999)). A plaintiff who seeks disclosure of such records bears “the initial burden

of pointing to specific information in the public domain that appears to duplicate that being

withheld.” Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983); see Davis, 968 F.2d

at 1280 (stating that plaintiff must “point to specific information identical to that being

withheld”). Plaintiff’s argument is not persuasive, given his failure to point to any specific

record, document, or information identical to what is being withheld under the claimed

exemption. Accordingly, there is no showing from which the Court can conclude with any

confidence that the information sought by plaintiff truly is in the public domain. See Cottone,

193 F.3d at 555.

Courts have held that the violence and risk of retaliation attendant to drug trafficking

warrant an implied grant of confidentiality to a source. See Mays v. Drug Enforcement Admin.,

234 F.3d 1324, 1329 (D.C. Cir. 2000) (withholding the identity of a source who supplied

information about a conspiracy to distribute crack and powder cocaine); Miller v. U.S. Dep’t of

Justice, 562 F. Supp. 2d 82, 123 (D.D.C. 2008) (withholding the names of and information

provided by sources under an implied assurance of confidentiality given the plaintiff’s “reported

criminal history of kidnapping and the subsequent torture, murder and dismemberment of

bodies”). In the circumstances of this case, particularly given plaintiff’s convictions for violent

felonies, it is reasonable to conclude that the confidential informants provided information to the

FBI with an expectation that their identities would not be disclosed. The Court concludes that

their identities and any information from which their identities could be determined properly is

withheld under Exemption 7(D).

16 b. South Carolina Law Enforcement Division

The FBI received information concerning the criminal activities of plaintiff and other

parties of investigative interest to the FBI from the South Carolina Law Enforcement Division

(“SLED”). Hardy Decl. ¶ 64. Printed on SLED’s documents was a message which stated in

relevant part that the “contents are not to be distributed outside your agency.” Id.

The term “source” for purposes of Exemption 7(D) “includes not only individuals such as

private citizens and paid informants but also entities such as . . . state and local law enforcement

agencies[.]” Lesar, 636 F.2d at 491. The message printed on SLED’s documents suggests that it

shared information with the FBI only on the understanding that the contents would be kept

confidential. Accordingly, the Court concludes that the information provided to the FBI by

SLED properly is withheld under Exemption 7(D). See Thomas v. U.S. Dep’t of Justice, 531 F.

Supp. 2d 102, 111 (D.D.C. 2008) (withholding under implied assurance of confidentiality “a

Report of Investigation provided by the Metropolitan Police Department which contains the

following statement: This report is the property of the Metropolitan Police Department. Neither

it nor its contents may be disseminated to unauthorized personnel.”); Meserve v. U.S. Dep’t of

Justice, No. 04-1844, 2006 WL 2366427, at *10 (D.D.C. Aug. 14, 2006) (citations omitted)

(withholding under Exemption 7(D) material from the State of Ohio where the transmittal

contained a statement that the data contained therein “is only to be used for criminal justice

purposes”).

17 4. Exemptions 2 and 7(E)4

Under Exemption 2 in conjunction with Exemption 7(E), the FBI withholds “certain

information on FBI Form FD-515, an investigations accomplishment report.” Hardy Decl. ¶ 41;

see id. ¶ 66.

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

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

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

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

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

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

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

F.2d 793, 795 (D.C. Cir. 1990) (emphasis in original). Exemption 2 applies if the information

that is sought meets two criteria. First, such information must be “used for predominantly

internal purposes.” Crooker, 670 F.2d at 1074; see Nat’l Treasury Employees Union v. U.S.

Customs Serv., 802 F.2d 525, 528 (D.C. Cir. 1985). Second, the agency must show either that

“disclosure may risk circumvention of agency regulation,” or that “the material relates to trivial

administrative matters of no genuine public interest.” Schwaner, 898 F.2d at 794 (citations

4 Because plaintiff opposes neither the withholding of internal telephone and facsimile numbers nor the withholding of polygraph data under Exemptions 2 and 7(E), see Pl.’s Opp’n at 7, the Court deems these matters conceded. The FBI’s declaration establishes that the material at issue predominantly is used for internal agency purposes, and that it merely relates to trivial administrative matters of no genuine public interest. See Hardy Decl. ¶¶ 39-40. Remaining, then, is plaintiff’s challenge to the withholding of information pertaining to investigative techniques and procedures under Exemptions 2 and 7(E). See id.; see Hardy Decl. ¶¶ 41, 65-66.

18 omitted). “Predominantly internal documents[,] the disclosure of which would risk

circumvention of agency statutes[,] are protected by the so-called ‘high 2’ exemption.” Schiller

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

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

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

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

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

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

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

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

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

Morley v. Cent. Intelligence Agency, 453 F. Supp. 2d 137, 156 (D.D.C. 2006) (withholding

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

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

those processes in the future”); Piper v. U.S. Dep’t. of Justice, 294 F. Supp. 2d 16, 30 (D.D.C.

2003) (withholding polygraph test information on the ground that disclosure “has the potential to

allow a cunning criminal to extrapolate a pattern or method to the FBI’s questioning technique,”

and anticipate or thwart FBI’s strategy); Fisher v. U.S. Dep’t of Justice, 772 F. Supp. 7, 12

(D.D.C. 1991) (upholding the FBI’s decision to withhold information about law enforcement

techniques when disclosure would impair effectiveness, and, within the context of the

documents, “could alert subjects in drug investigations about techniques used to aid the FBI”),

aff’d, 968 F.2d 92 (D.C. Cir. 1992).

19 A Special Agent submits an FD-515 form “at various stages in an investigation to report

statistically important events such as indictments, arrests and convictions, or the recovery of

stolen property.” Hardy Decl. ¶ 41. In addition, the form lists “27 publicly known investigative

techniques and/or assistance . . . used by the investigative personnel during the investigation.”

Id. ¶ 66. “Opposite each investigative technique and assistance is a rating column which records

a numerical rating from 1 to 4[.]” Id. The ratings “relate[] solely to the FBI’s internal practices.”

Id. ¶ 41. The FBI has redacted the entire rating column. Id. ¶¶ 41, 66. According to the

declarant, if the rating column were released, “plaintiff and others involved in criminal violations

. . . could change their activities and modus operandi in order to avoid detection and/or

surveillance in the future.” Id. ¶ 66. The FBI “will use the same or similar techniques and/or

assistance to bring similar future investigations to successful conclusions,” id., and the agency

withholds this information in order “to prevent future circumvention of the law by criminals.”

Id.

Plaintiff argues that the FBI may withhold information pertaining to law enforcement

techniques only if those “techniques or procedures are not well known to the public, or are

otherwise extraordinary.” Pl.’s Opp’n at 7. This court previously has affirmed the withholding

of the ratings column of the form FD-515 under Exemption 7(E). See Concepción v. Fed.

Bureau of Investigation, 606 F. Supp. 2d 14, 43 (D.D.C. 2009) (concluding that the FBI properly

withheld both the investigative accomplishments report’s rating column and information that

would reveal techniques and procedures for conducting investigations and undercover operations

under Exemption 2 and 7(E)); Peay v. Dep’t of Justice, No. 04-1859, 2007 WL 788871, at *6

(D.D.C. Mar. 14, 2007) (concluding that the FBI properly redacted the “entire rating column [of

20 form FD-515] in order to protect ... the specific techniques that were and were not used by the

FBI during its investigation of plaintiff and others”); Perrone v. Fed. Bureau of Investigation,

908 F. Supp. 24, 28 (D.D.C. 1995) (concluding that the FBI FD-515 form properly is withheld

under Exemption 7(E) because “disclosure of this information would help plaintiff or potential

criminals predict future investigative actions by the FBI and consequently employ

countermeasures to neutralize those techniques”). In view of this authority, plaintiff’s argument

regarding material withheld by the FBI from disclosure pursuant to Exemptions 2 and 7(E) is

without merit.

D. SEGREGABILITY

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

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

are inextricably intertwined with exempt portions. 5 U.S.C. § 552(b); see Trans-Pacific Policing

Agreement v. U.S. Customs Serv., 177 F.3d 1022 (D.C. Cir. 1999). The court errs if it “simply

approve[s] the withholding of an entire document without entering a finding on segregability, or

the lack thereof.” Powell v. U.S. Bureau of Prisons, 927 F.2d 1239, 1242 n.4 (D.C. Cir. 1991)

(quoting Church of Scientology of Cal. v. U.S. Dep't of the Army, 611 F.2d 738, 744 (9th Cir.

1979)).

The declarant avers that agency staff have “carefully examined the withheld information”

and concludes that “the FBI has released all reasonably segregable nonexempt information to

plaintiff in response to this FOIA requests to the FBI.” Hardy Decl. ¶ 70. Based on the

declarant’s representations, the absence of any meaningful opposition by the plaintiff, and the

record of the case, the Court concludes that all reasonably segregable records have been released.

21 III. CONCLUSION

The FBI establishes that its search for records responsive to plaintiff’s FOIA request was

reasonable under the circumstances, that it properly withheld information under Exemptions 2,

7(C), 7(D), and 7(E), and that all reasonably segregable material has been released. Because no

material facts are in dispute and the FBI is entitled to judgment as a matter of law, the Court will

grant summary judgment in defendant’s favor. An Order accompanies this Memorandum

Opinion.

HENRY H. KENNEDY, JR. United States District Judge

DATE: February 17, 2010