Young v. Department of Justice

• Court: District Court, District of Columbia
• Decided: December 14, 2022
• Docket: Civil Action No. 2021-0739
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NICHOLAS E. YOUNG,

Plaintiff,

v. No. 21-cv-739 (DLF)

U.S. DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION

Nicholas Young brings this suit against the Department of Justice under the Freedom of

Information Act (FOIA), 5 U.S.C. § 552. Before the Court is the defendant’s Motion for Summary

Judgment, Dkt. 22. For the reasons that follow, the Court will grant the motion.

I. BACKGROUND

On December 18, 2017, Young was convicted of attempting to provide material support to

the Islamic State of Iraq and al-Sham (ISIS) and attempted obstruction of justice, for which he was

sentenced to 15 years in prison. United States v. Young, No. 16-cr-265 (E.D. Va.), Dkts. 196, 224.

On January 3, 2021, Young submitted a FOIA request to the FBI for records concerning a

confidential human source (CHS) referred to as “Mo,” who publicly testified against Young at his

criminal trial. Seidel Decl. ¶ 6 & Ex. A, Dkt. 22-2. At issue here is line item 6 of the FOIA

request, which sought disclosure of any and all FBI records revealing “(i) the number of

consensual audio recordings of [] Young made by CHS ‘Mo,’ (ii) whether any of those recordings

were destroyed, misplaced, lost, or otherwise withheld from production to [] Young, (iii) any ‘validation reports’ or CHS file concerning ‘Mo,’[] and (iv) whether any information was withheld

from, or not placed in, the validation report for ‘Mo.’” Id. Ex. E.1

In response, the FBI conducted a search using the phrase “Nicholas Young” and limited

the scope to acknowledged records regarding “Mo.” Id. ¶ 51. On December 3, 2021, the FBI sent

a letter to Young informing him that records responsive to his request were categorically denied

pursuant to FOIA Exemptions 6, 7(C), and 7(D). Id. ¶ 20 & Ex. M.

Young brought this suit against DOJ on March 20, 2021, and amended his complaint on

July 12, 2021, after exhausting his administrative remedies. Complaint, Dkt. 1; First Amended

Complaint, Dkt. 11-3. On June 15, 2022, DOJ moved for summary judgment, arguing that the

FBI conducted a proper search and is justified in withholding records pursuant to FOIA

Exemptions 1, 3, 6, 7(C), 7(D), and 7(E). See Def.’s Mot. for Summ. J., Dkt. 22. Young contends

that the FBI did not adequately conduct a search for records responsive to his request in line item

6 and that the FBI’s declaration does not sufficiently justify withholding relevant records pursuant

to the asserted FOIA Exemptions. See Pl.’s Opp’n to Def.’s Mot. for Summ. J., Dkt. 24.

II. LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure states that “[t]he court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Materiality is, of course,

a function of the applicable legal standard, which in this case is that an agency responding to a

FOIA request must conduct a search reasonably calculated to uncover all relevant documents, and,

if challenged, must demonstrate beyond material doubt that the search was reasonable.”

1 In his opposition brief, Young conceded all arguments related to line item 7, narrowing the dispute to line item 6 alone. See Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 1, Dkt. 24.

2 Kowalczyk v. DOJ, 73 F.3d 386, 388 (D.C. Cir. 1996) (cleaned up). All facts and inferences must

be viewed in the light most favorable to the requester, and the agency bears the burden of showing

that it complied with FOIA. Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003 (D.C. Cir.

2009).

To prevail under Rule 56, a federal agency “must prove that each document that falls within

the class requested either has been produced, is unidentifiable, or is wholly exempt from [FOIA’s]

inspection requirements.” Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (per curiam)

(citation omitted). “The system of disclosure established by the FOIA is simple in theory. A

federal agency must disclose agency records unless they may be withheld pursuant to one of the

nine enumerated exemptions listed in [5 U.S.C.] § 552(b).” DOJ v. Julian, 486 U.S. 1, 8 (1988).

“The peculiarities inherent in FOIA litigation, with the responding agencies often in sole

possession of requested records and with information searches conducted only by agency

personnel, have led federal courts to rely on government affidavits to determine whether the

statutory obligations of [FOIA] have been met.” Perry, 684 F.2d at 126. Agency affidavits are

entitled to a presumption of good faith, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.

Cir. 1991), and “[s]ummary judgment may be granted on the basis of agency affidavits if they

contain reasonable specificity of detail rather than merely conclusory statements, and if they are

not called into question by contradictory evidence in the record or by evidence of agency bad

faith,” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (alteration in

original and citation omitted). It is well established that “the vast majority of FOIA cases can be

resolved on summary judgment.” Brayton v. Off. of the U.S. Trade Representative, 641 F.3d 521,

527 (D.C. Cir. 2011).

3 III. ANALYSIS

A. Adequacy of Search

The Court first concludes that the FBI’s search for all records with the term “Nicholas

Young” related to “Mo” in Young’s file was reasonably calculated to turn up records responsive

to Young’s request, including records regarding the recordings “Mo” made of Young and anything

that may have happened to them. At the summary judgment stage in a FOIA suit, “the issue to be

resolved is not whether there might exist any other documents possibly responsive to the request,

but rather whether the search for those documents was adequate.” Weisberg v. DOJ, 745 F.2d

1476, 1485 (D.C. Cir. 1984) (emphasis omitted). In general, the adequacy of a search “is judged

by a standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Id.

“The agency has the initial burden to demonstrate the adequacy of its search, which it may meet

by providing declarations or affidavits that are relatively detailed, nonconclusory and submitted in

good faith.” Landmark Legal Found. v. EPA, 959 F. Supp. 2d 175, 181 (D.D.C. 2013) (cleaned

up). A search is adequate if it uses “methods which can be reasonably expected to produce the

information requested.” Reporters Comm. for Freedom of the Press v. FBI, 877 F.3d 399, 402

(D.C. Cir. 2017) (citation omitted).

Here, the FBI submitted a declaration from Michael Seidel that describes its search in

reasonable detail because it includes the search terms and parameters used and provides reasoning

for them. A “reasonably detailed affidavit” sets forth “the search terms and the type of search

performed” and states that “all files likely to contain responsive materials (if such records exist)

were searched.” Oglesby v U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The affidavit

here explains in detail the method of its search of the FBI’s Central Records System, as well as the

term (“Nicholas Young”) and search refinement (records regarding “Mo”) relied on. Seidel Decl.

4 ¶ 51. After the search, the FBI found “no indication from the information located” that “responsive

material would reside in any other FBI system or location.” Id. ¶ 52. Through these sworn

statements, the FBI has met its burden to provide a reasonably detailed affidavit to defend the

adequacy of its search for records pursuant to Young’s FOIA request in line item 6.

Young’s arguments to the contrary are unpersuasive. First, the fact that the FBI

purportedly used unduly broad search terms is not an indication of an inadequate search. To be

sure, a failure to use broad search terms can be a reason to dispute whether a search was adequate,

see Bader Family Found. v. U.S. Dep’t of Educ., No. 21-cv-1741, 2022 WL 4355259, at *3 (D.D.C.

Sept. 20, 2022); Am. Oversight v. OMB, No. 18-cv-2424, 2020 WL 1536186, at *4 (D.D.C. Mar.

31, 2020). But broad, overinclusive search terms would not limit the responsive records produced

by the agency; indeed, they would only generate more of them. That an agency produced too many

records in its initial searches is thus not in and of itself a reason to deny summary judgment.

Second, the Court is unconvinced that the FBI unduly narrowed its search to Young’s

investigative file. The court gives deference to the agency as being “in the best position to

determine custodians most likely to have relevant records.” Am. Oversight v. DOJ, 401 F. Supp.

3d 16, 30 (D.D.C. 2019) (citation omitted). The FBI’s determination that any documents

referencing the recordings between Young and “Mo” would most likely be found in Young’s file

and would be found by a search for “Mo” is sensible because the information requested relates to

Young’s criminal prosecution. See Second Seidel Decl. ¶ 6, Dkt. 27-1 (“Plaintiff asked

specifically for records regarding the use of ‘Mo’ as a confidential informant in the investigation

of Plaintiff, and therefore, there is no other agency file or location that would reasonably be

expected to store records regarding the use of ‘Mo’ in the investigation of Plaintiff.”). Young

provides no persuasive reason to conclude otherwise.

5 Third, that the search yielded no records responsive to the second through fourth requests

of line item 6 also does not diminish the adequacy of the search. Adequacy is not determined by

the “fruits of the search.” Hodge v. FBI, 703 F.3d 575, 579 (D.C. Cir. 2013) (citation omitted).

Rather, for a search to be adequate, it must merely be reasonably calculated to produce the

materials requested if they exist. Oglesby, 920 F.2d at 68. The FBI clarified in a supplemental

declaration that no records were presented concerning these requests because no such records were

found in the search. See Second Seidel Decl. ⁋ 7. Because the FBI conducted the search with

reasonable terms and listed all relevant records, it fulfilled its responsibility. There is no additional

obligation to “answer” any questions that may be underlying the FOIA request. See Nat’l Sec.

Couns. v. CIA, 898 F. Supp. 2d 233, 269 (D.D.C. 2012) (explaining that FOIA neither imposes a

“duty on the agency to create records” nor requires the agency to “answer[] questions disguised as

a FOIA request”) (citations omitted). The Seidel Declaration describes the responsive records

found, and the court gives deference to the agency’s good-faith judgment of which records from

its search are ultimately responsive. SafeCard Servs., 926 F.2d at 1200.

B. Exemption 7(D)

The Court also concludes that the FBI was justified in withholding records found in its

search under Exemption 7(D) because, as Young concedes, see Opp’n at 11, “Mo” was a

confidential source providing information with the understanding of complete confidentiality.

“Where, as here, the records at issue were ‘compiled by criminal law enforcement

authorit[ies] in the course of a criminal investigation,’ they are covered by Exemption 7(D) if

producing the records ‘could reasonably be expected to disclose the identity of a confidential

source’ or ‘information furnished’ by such a source.” Roth v. DOJ, 642 F.3d 1161, 1184 (D.C.

Cir. 2011) (alteration in original and quoting 5 U.S.C. § 552(b)(7)(D)). Further, “[i]f the FBI’s

6 production of criminal investigative records ‘could reasonably be expected to disclose the identity

of a confidential source’ or ‘information furnished by’ such a source, that ends the matter, and the

FBI is entitled to withhold the records under Exemption 7(D).” Id at 1184–85 (quoting 5 U.S.C.

§ 552(b)(7)(D)).

Young’s arguments that the types of responsive records described by the FBI either would

not reveal the identity of “Mo” or are not relevant to his request are unconvincing. The FBI

provided a descriptive list of types of documents revealed in its search that it withheld as

reasonably expected to identify “Mo,” including CHS reporting documents, interview forms, FBI

electronic communications, and administrative investigation documents. See Seidel Decl. ¶ 59.

Young contends that the records he requests would not disclose the identity of “Mo,” but the

agency with access to the documents is in the best position to make that determination. The FBI

met its burden to provide a sufficiently detailed justification for withholding these records. See

Judicial Watch, 726 F.3d at 215 (explaining that agencies satisfy their burden if affidavits include

“reasonable specificity of detail”). The same is true with respect to the FBI’s determination that

non-exempt records could not be segregated from exempt ones. In general, when a FOIA requester

“seeks a mixture of exempt and non-exempt records . . . an agency must segregate the non-exempt

information from the exempt information, disclosing the former but not the latter.” Elec. Privacy

Info. Ctr. v. IRS, 910 F.3d 1232, 1237 (D.C. Cir. 2018). If, however, an agency adequately

describes its segregability analysis and justifies its withholdings, “a district court need not conduct

its own in camera search for segregable non-exempt information unless the agency response is

vague, its claims too sweeping, or there is a reason to suspect bad faith.” Mead Data Cent., Inc.

v. U.S. Dep’t of Air Force, 566 F.2d 242, 262 (D.C. Cir. 1977); see also Miller v. DOJ, 872 F.

Supp. 2d 12, 27 (D.D.C. 2012) (“[T]he Court will defer to an agency’s good faith determination

7 regarding segregability.”). Here, the Seidel Declaration reasonably details that segregated

disclosure would either “result in the release of meaningless, disjointed words or phrases” or

otherwise “indicate the extent to which CHS ‘Mo’ cooperated with or provided information to the

FBI.” Seidel Decl. ¶¶ 108–109; see also id. ¶ 58 (“Any non-exempt information is so inextricably

intertwined with records related to CHS ‘Mo’ and/or information provided, that release of the non-

exempt information would produce only incomplete sentences composed of isolated, meaningless

words.”). Young has provided no argument to “overcome [the] presumption” that the agency

complied with its segregability-related obligations. Sussman v. U.S. Marshals Serv., 494 F.3d

1106, 1117 (D.C. Cir. 2007).

Finally, the fact that “Mo” publicly testified at trial does not change the analysis. FOIA

Exemption 7(D) allows the government to withhold confidential sources’ identities and the

information they provided even after those sources testify in court. See Parker v. DOJ, 934 F.2d

375, 380–82 (D.C. Cir. 1991) (explaining that “the concept of ‘waiver’ does not apply to . . . FOIA

Exemption 7(D)”). In his opposition, Young cursorily suggests that “Mo” “testified to the

existence of the very information sought by Young’s FOIA request,” Opp’n at 13 n.3, but there is

no basis for concluding that any particular record contains “the ‘exact information’ to which the

source actually testified.” Davis v. DOJ, 968 F.2d 1276, 1281 (D.C. Cir. 1992) (citation omitted).

8 CONCLUSION

For the foregoing reasons, the Court grants the defendant’s motion for summary judgment.2

A separate order consistent with this decision accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge December 14, 2022

2 Because the Court finds sufficient reason for withholding the documents under Exemption 7(D), it will not address the defendant’s Exemption 1, 3, 6, 7(C), and 7(E) arguments.