UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Villar
v. Civil No. 15-cv-270-LM Opinion No. 2017 DNH 157 Federal Bureau of Investigation
O R D E R
Richard Villar, a prisoner, brings this suit pursuant to
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. The FBI and Villar have
filed 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
In January 2008, Villar was convicted of armed robbery and
conspiracy to commit armed robbery. Following unsuccessful
appeals and petitions for habeas corpus, 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 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 benefits or
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 in his file, the FBI
opened two separate requests. See Doc. no. 43 at 3. The first
request covered the records related to Villar or stored in his
2 file (the “Villar Request”). The second request concerned the
FBI’s records about Harrington (the “Harrington Request”).
In response to the Harrington Request, and pursuant to its
policy for requests about third parties, the FBI issued a
conditional “Glomar response.”1 In that response, the FBI
refused to search for records about Harrington unless Villar
provided express authorization from Harrington, proof of
Harrington’s death, or a “clear demonstration that the public
interest in disclosure outweighs personal privacy interests and
a significant public benefit would result from the disclosure of
the requested records.” Doc. no. 43-4 at 1. In support of its
refusal, the FBI cited the Privacy Act, 5 U.S.C. § 552a, which,
it asserted, prohibited it from disclosing records about third
parties. Because Villar did not provide the required
information, the FBI did not search for documents about
Harrington and did not process the Harrington Request. Villar
did not appeal the FBI’s response to the Harrington Request.
1 A Glomar response occurs when the government refuses to confirm or deny the existence of requested records. Carpenter v. U.S. Dep’t of Justice, 470 F.3d 434, 436 (1st Cir. 2006). “The ‘Glomar response' derives its name from a ship, the Hughes Glomar Explorer, built (we now know) to recover a sunken Soviet submarine, but disguised as a private vessel for mining manganese nodules from the ocean floor.” Id. at 436 n.3.
3 In response to the Villar Request, the FBI conducted a
search of its records and identified 615 pages2 of documents that
were responsive.3 In September 2012, the FBI released 388 pages
of documents to Villar, 126 of which contained redactions. The
FBI withheld the remaining 227 documents in their entirety. 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 the Villar Request to
the Department of Justice’s Office of Information Policy. The
Office of Information Policy denied his appeal in June 2015.
Villar then brought this suit, proceeding pro se,4 and
asserting claims against the FBI, David Hardy, the Section Chief
for the FBI’s Records Management Division, and Brian Keefe, an
FBI Special Agent. The court previously dismissed Villar’s
claims against Hardy and Keefe. Doc. no. 40. As a result, the
2 The FBI first informed Villar that it had identified 651 documents responsive to the Villar Request. See Doc. no. 43-6. The FBI now contends that there were 615 documents responsive to the Villar Request. Doc. no. 43-2 at ¶ 86.
3 Initially, 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.
4 Villar has since obtained counsel. 4 only claim remaining in this action is Villar’s FOIA claim
against the FBI.
Discussion
The FBI moves for summary judgment, arguing that its
withholding of information was proper under FOIA Exemptions 6,
7(C), 7(D), and 7(E). See U.S.C. § 552(b)(6) and (b)(7)(C),
(D), and (E). Villar objects, arguing that the FBI provided an
insufficient Vaughn index,5 the FBI’s asserted exemptions do not
apply here, and the FBI has waived its right to assert other
exemptions.
Villar also moves for summary judgment, and the FBI
objects. In support of their positions on Villar’s motion, both
parties have incorporated their arguments on the FBI’s motion
for summary judgment.
I. FOIA
FOIA requires federal agencies to make their records
available to any person upon request. 5 U.S.C. § 552(3). FOIA
5 “A Vaughn index is a comprehensive list of all documents that the government wants to shield from disclosure in Freedom of Information Act (FOIA) litigation, each document being accompanied by a statement of justification for nondisclosure. The name derives from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).” New Hampshire Right to Life v. U.S. Dep’t of Health & Human Servs., 778 F.3d 43, 48 (1st Cir. 2015) (internal quotation marks omitted).
5 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 permitting citizens to know ‘what their government is up
to.’” Id. at 50 (quoting U.S. Dep’t of Justice v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)
(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). Further, agencies cannot withhold
a document in its entirety merely because it contains some
exempt material. Airaj v. United States Dep’t of State, 15-cv-
983(ESH), 2016 U.S. Dist. LEXIS 55750, at *30 (D.D.C. Apr. 27,
2016). Rather, “FOIA . . . mandates that ‘any reasonably
segregable portion of a record shall be provided to any person
6 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)).
The government bears the burden of demonstrating that
material is exempt from disclosure. New Hampshire Right to
Life, 778 F.3d at 48. When assessing whether an exemption
applies, courts must “employ[] a de novo review [and] find an
adequate factual basis to support the agency's assertion of the
exemption.” Town of Winthrop v. F.A.A., 328 F. App’x 1, 5 (1st
Cir. 2009) (citing Maynard v. C.I.A., 986 F.2d 547, 567 n.11
(1st Cir. 1993)). Moreover, courts must make a determination
about whether the agency has conducted a proper segregability
analysis on withheld material. Carpenter, 470 F.3d at 443.
II. FBI’s Motion
The FBI moves for summary judgment, arguing that it
properly issued a Glomar response to the Harrington Request and
that its withholdings of documents responsive to the Villar
Request were justified under several FOIA exemptions. Villar
objects, arguing that the FBI has failed to provide a sufficient
Vaughn index, the FOIA exemptions on which the FBI relies are
inapplicable, and the FBI has waived its right to assert certain
7 A. The Harrington Request
The FBI moves for summary judgment on the portion of
Villar’s FOIA claim concerning its Glomar response to the
Harrington Request. As an initial matter, the FBI argues that
Villar’s complaint does not challenge the FBI’s Glomar response
to the Harrington Request and therefore his FOIA claim does not
encompass a claim based on that request. In addition, the FBI
argues that to the extent the complaint is construed to include
a claim based on its Glomar response, that claim must be
dismissed because (1) Villar failed to exhaust his
administrative remedies for that claim and (2) the Privacy Act
prohibited it from releasing third-party records about
Harrington.
Villar’s complaint contains no allegation concerning the
FBI’s refusal to search for records relating to Harrington.
Villar’s objection likewise does not mention the FBI’s Glomar
response to the Harrington Request. Nevertheless, given that
Villar’s complaint was filed pro se and that the complaint and
objection do discuss Harrington and her role in Villar’s
criminal trial, the court will construe the complaint to include
a claim challenging the FBI’s response to the Harrington
Request.
8 In resolving the FBI’s substantive arguments against this
claim, the court focuses on Villar’s failure to exhaust
administrative remedies because it is dispositive. Before
seeking judicial review of an agency’s response to a FOIA
request, a plaintiff generally must exhaust all administrative
remedies. Kottori v. F.B.I., 784 F. Supp. 2d 83, 85 (D. Mass.
2011) (noting that “FOIA's administrative scheme ‘favors
treating failure to exhaust as a bar to judicial review’”)
(quoting Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004)). To
properly exhaust all administrative remedies, the requester must
comply with the agency's regulations, Union Leader Corp. v. U.S.
Dep't of Homeland Sec., No. 12-CV-18-JL, 2012 WL 1000333, at *1
(D.N.H. Mar. 23, 2012), and must “exhaust . . . the
administrative appeals process . . . before bringing suit.”
King v. U.S. Dep’t of Justice, No. CV 15-1445 (RDM), 2017 WL
1166309, at *3 (D.D.C. Mar. 28, 2017).
In support of its motion, the FBI attached a declaration
from Hardy. See doc. no. 43-2. In that declaration, Hardy
asserts that Villar never appealed the FBI’s denial of the
Harrington Request. The FBI has also attached as exhibits to
Hardy’s declaration a history of the correspondence between
Villar and the FBI concerning his FOIA request. That history
demonstrates two relevant points. First, in each correspondence
discussing his appeal, Villar referenced only the administrative
9 request number associated with the Villar Request. See doc.
nos. 43-5, 43-9, 43-17, 43-22. Second, although some of
Villar’s appeal letters discuss his need to obtain information
about Harrington, those letters appear to request that the FBI
disclose any Harrington-related material from the 615 pages in
Villar’s file, not that the FBI conduct an independent search
for records about Harrington. See doc. nos. 43-9; 43-17 (appeal
letter from Villar observing that the documents he requested
were “all . . . related to [his] specific case”); 43-22.
Therefore, the FBI has presented evidence that Villar did not
appeal its response to the Harrington Request.
Villar points to no evidence demonstrating that he appealed
the FBI’s response to the Harrington Request. Nor has he argued
that he is exempt from FOIA’s exhaustion requirement.
Accordingly, the FBI is entitled to summary judgment on the
portion of Villar’s claim concerning the Harrington Request.
B. The Villar Request
The FBI moves for summary judgment on Villar’s claim
challenging its response to the Villar Request, arguing that its
nondisclosure of material covered by that request is justified
under FOIA Exemptions 6, 7(C), 7(D), and 7(E). Villar objects,
contending that the FBI’s index and declaration are insufficient
to secure summary judgment, the FBI has waived the right to rely
10 on Exemption 7(E), and the evidence demonstrates that the
exemptions the FBI asserts are not applicable.
1. FBI Index and Declaration
Villar argues that the FBI has not provided sufficient
evidence to substantiate the FOIA exemptions that it asserts.
In support, Villar contends that the FBI has failed to provide a
Vaughn index that identifies “each withheld document” and
“describe[s] the contents of each document” in a manner that
would “correlate the claimed exemptions to the withheld
documents.” Doc no. 45 at 12. In response, the FBI asserts
that its index and affidavit adequately set forth why the
material it withheld is exempt from disclosure under FOIA.
“To provide for the broadest possible disclosure and
further the adversary process, courts often require the
withholding agency to provide a ‘Vaughn’ index.” Carpenter, 470
F.3d at 442. 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
11 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, 986 F,2d at 557); see also New
Hampshire Right to Life, 778 F.3d at 48 n.3 (“A Vaughn index is
necessary in FOIA litigation, as only the party opposing
disclosure will have access to all the facts.” (internal
quotation marks and citation omitted)). 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.” Church of
Scientology, 30 F.3d at 231. When an agency fails to provide an
index fulfilling these functions, a court may deny summary
judgment. Id. at 240.
Here, the FBI submitted what it calls a “Vaughn coded”
index and a declaration to justify its withholdings. The codes
refer to a set of codes that the FBI has assigned to each type
of information that it claims is exempt under FOIA. Each code
also relates to a particular exemption that the FBI contends
exempts the covered material from disclosure. To justify
individual redactions, the FBI has stamped a code on the face of
the documents next to each redaction. For pages withheld in
full, the FBI has provided a table identifying the page number
12 withheld and referencing a code to justify that withholding.
The Hardy declaration also describes the type of material
withheld under each category and explains the bases for claiming
that the material is exempt from disclosure.
“Use of coded indices has been explicitly approved by
several circuit courts as long as each deletion is correlated
‘specifically and unambiguously to the corresponding exemption,’
and the agency affidavit places ‘each document into its
historical and investigative context.’” Maynard, 986 F.2d at
559 n.13 (quoting Keys v. United States Dept. of Justice, 830
F.2d 337, 349–50 (D.C. Cir. 1987)). In Maynard, the First
Circuit approved of the use of coded indices, observing that “in
some instances,” they can “accomplish the functions of Vaughn
more efficiently and clearly than would the classical Vaughn
indices.” Id. at 559 (internal quotation marks omitted).
Nevertheless, some courts have rejected coded indices where
an agency has withheld numerous pages in full because the coded
justifications do not provide the context necessary to evaluate
the agency’s withholdings or its segregability analysis.
Sciacca v. F.B.I., 23 F. Supp. 3d 17, 29-30 (D.D.C. 2014)
(denying motion for summary judgment because agency’s coded
index did not “bother even to list or describe the responsive
documents at issue” and did “not provide any information on the
segregability of the documents that were entirely withheld”);
13 Awan v. U.S. Dep’t of Justice, No. CIV.A. 10-1100 BAH, 2011 WL
2836561, at *1-2 (D.D.C. July 13, 2011) (rejecting coded indices
for documents withheld in full and ordering in camera review);
Schoenman v. FBI, 604 F. Supp. 2d 174, 197-98 (D.D.C. 2009)
(holding index insufficient because “[w]here the FBI has
withheld documents in their entirety, the Vaughn index fails to
provide any description of such documents”); Robinson v. F.B.I.,
Civ. No. 06-3359, 2008 WL 2563212, at *8-9 (E.D. Pa. Feb. 14,
2008) (rejecting coded indices and noting heightened concerns
where “entire pages, or substantial portions thereof, are
redacted and no specific context in which the redacted
information appears is provided”).
This limitation on coded indices comports with First
Circuit precedent. In Church of Scientology, the First Circuit
rejected an agency’s Vaughn index and accompanying declarations,
which sought to justify the withholding of numerous documents in
their entirety. 30 F.3d at 230-31, 240. In doing so, the First
Circuit concluded that the index’s descriptions of the withheld
documents were “too cursory to permit debate, or an informed
judgment, about whether they properly may be withheld.” Id. at
230. The court also refused to credit the agency’s affidavits,
because they only discussed the withheld material generally and
did not refer to specific documents. Id. at 231. In addition,
the court held that the index’s lack of detail rendered it
14 deficient in demonstrating segregability. Id. at 231-32.6 As
the court observed, many of the index’s descriptions failed to
explain why the agency had withheld a document in full, rather
than redacting the exempt material. Id. at 231-33. And the
agency’s affidavits, which only stated that it conducted a
segregability analysis, were “wholly conclusory” without any
explanation of that analysis. Id. at 231.
Significantly, the court in Church of Scientology also
distinguished Maynard and its approval of coded indices. Id. at
233. The court reasoned that the agency in Maynard had provided
more detail in support of its withholding because it “produced
the withheld documents in redacted form” and because the court
had reviewed all documents at issue in camera. Id.
Here, the FBI’s coded index and declarations fail to
provide Villar with the opportunity to contest the agency’s
conclusions and fail to provide the court with the factual basis
it needs to conduct a de novo review. The FBI has withheld in
6 Although the Church of Scientology court noted that the government could proceed on a categorical basis in demonstrating that identifying information about third-parties is exempt under Exemption 7(C) (an exemption that the FBI asserts here), it concluded that this fact did not relieve the agency of the burden of “demonstrat[ing] on an item-by-item basis why documents should not be released with personal identifying information redacted.” 30 F.3d at 238 n.22. In any event, the FBI has not argued in its legal brief that categorical treatment of the exempt material is appropriate here.
15 full what appears to be numerous lengthy documents without
providing even a cursory description of what those documents
contain.7 Several long ranges of pages are withheld in their
entirety based on a uniform set of codes, which raises doubt
about whether the FBI correlated each exemption to a particular
portion of a document, as it is required to do. See, e.g., doc.
no. 43-26 at 6-7 (withholding pages 217-225, 238-90, 337-48).
And while the FBI has provided a lengthy declaration justifying
the claimed exemptions, that declaration only discusses the
exempt material in general terms and fails to address the
specific documents at issue. Finally, the FBI has not provided
any explanation for its conclusion that the withheld documents
contain no segregable, disclosable material. The agency’s only
reference to segregability is the conclusory assertion in
Hardy’s declaration that the FBI conducted a segregability
analysis. See doc. no. 43-2 at ¶ 86.
Accordingly, the agency’s index and its affidavit are not a
sufficient basis for this court to grant summary judgment.8
7 Because the FBI only identifies withheld material by page, and not by document, the court can only presume that the long ranges of consecutively withheld pages are larger documents. See doc. no. 43-26.
8 Although some cases appear to uphold the type of index used here, see Hodge v. FBI, 764 F. Supp. 2d 134, 2011 U.S. Dist. LEXIS 14873 (D.D.C. Feb. 14, 2011); Fischer v. United States DOJ, 596 F. Supp. 2d 34, 43-44 (D.D.C. 2009), the FBI provides no First Circuit authority permitting it to dispense 16 2. Applicability of the Exemptions
Because the FBI has failed to provide the court with
sufficient information to conduct its de novo review, the court
will not assess the applicability of the exemptions that the FBI
claims at this juncture.
III. Villar’s Motion
Villar moves for summary judgment, arguing that the FBI has
waived its right to rely on some of the claimed exemptions and
that those exemptions do not apply. In response, the FBI argues
that it has demonstrated that the withheld material is exempt
from disclosure under FOIA.
A. Waiver
Villar argues that the FBI waived the right to assert
Exemptions 7(D) and 7(E) because the agency did not reference
those exemptions as a basis for withholding material at the
with the requirements that it provide adequate context about withheld material and address segregability in detail. See Church of Scientology, (requiring an adequate description of withheld documents and segregability assessment); Widi v. McNeil, No. 2:12-CV-00188-JAW, 2016 WL 4394724, at *26–27 (D. Me. Aug. 16, 2016) (citing Church of Scientology and holding index inadequate where agency failed to provide segregability detail for each document), reconsideration granted in part, No. 2:12-CV-00188-JAW, 2017 WL 1906601 (D. Me. May 8, 2017).
17 administrative level. In response, the FBI argues that waiver
is not applicable here.
As an initial matter, the FBI points out that it did, in
fact, reference Exemptions 7(D) and 7(E) in its response to
Villar’s request. See Doc. nos. 43-16, 43-24. Villar, on the
other hand, provides no evidence to support his assertion that
the FBI did not assert the exemptions at the administrative
level. More importantly, however, an agency cannot “‘waive’ its
right to invoke an exception prior to suit.” Hodes v. U.S.
Dep’t of Hous. & Urban Dev., 532 F. Supp. 2d 108, 114 n.2
(D.D.C. 2008) (referring to waiver argument as “clearly
meritless”); see also Adamowicz v. I.R.S., 552 F. Supp. 2d 355,
361 n.2 (S.D.N.Y. 2008) (rejecting argument that agency waived
right to invoke exemption).
Therefore, the court denies Villar’s motion for summary
judgment to the extent it relies on the waiver theory.
B. Applicability of Exemptions
Villar also contends that he is entitled to summary
judgment on his FOIA claim because the exemptions on which the
FBI relies do not apply to the withheld information. In his
declaration, Hardy makes several assertions describing the
withheld material and explaining why the material qualifies for
an exemption to FOIA’s disclosure requirements. Based on the
18 summary judgment record, these assertions create disputed issues
of fact that preclude summary judgment in Villar’s favor.
Accordingly, Villar’s motion for summary judgment is
denied.
IV. The Path Forward
The court will permit Villar and the FBI to file additional
motions for summary judgment. Church of Scientology, 30 F.3d at
239 (noting that the agency would have “to revise its
submissions” after its Vaughn index was rejected); Baker v. U.S.
Dep’t of Homeland Sec., No. 3:11-CV-588, 2012 WL 245963, at *4
(M.D. Pa. Jan. 25, 2012) (“[W]here a justification for
withholding documents was not in bad faith, but was instead
vague, the proper remedy is to allow the agency to submit a
revised supplemental declaration and Vaughn index regarding
these particular materials.”). Should the FBI file a new motion
for summary judgment, it must support its withholdings with
enough detail to allow the court and Villar to assess its
conclusions concerning the applicability of the FOIA exemptions
on which it relies and segregability. That is not to say that
the FBI must file a traditional Vaughn index, as opposed to
relying on a supplemented version of the coded format provided
here. If, however, such a format is used, the FBI’s submission
must provide additional detail to justify its withholdings.
19 Conclusion
For the foregoing reasons, the FBI’s motion for summary
judgment (doc. no. 43) is granted in part as to the Harrington
Request and denied as to the Villar Request without prejudice to
filing a new motion in accordance with this order. In addition,
Villar’s motion for summary judgment (doc. no. 47) is also
denied without prejudice to filing a new motion. The parties
are granted leave to file for any amendment of the scheduling
order that this order may necessitate.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
August 21, 2017
cc: T. David Plourde, Esq. Linda B. Sullivan Leady, Esq.