UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) FIELDING McGEHEE, III, ) REBECCA MOORE, ) ) PlaintiffS, ) ) v. ) Civil Action No. 01-1872 (GK) ) UNITED STATES DEPARTMENT ) OF JUSTICE, ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION

Plaintiffs Fielding McGehee, III and Rebecca Moore bring this

action against Defendant, the United States Department of Justice

(“DOJ”), under the Freedom of Information Act (“FOIA”),

. Plaintiffs seek documents in the possession of the Federal

Bureau of Investigation concerning the victims and investigations

of the Jonestown Massacre, which occurred in Jonestown, Guyana, on

November 18, 1978. This matter is before the Court on Defendant’s

Second Motion for Summary Judgment [Dkt. No. 126] and Plaintiffs’

Second Cross-Motion for Summary Judgment [Dkt. No. 132]. Upon

consideration of the Motions, Oppositions, Replies, and the entire

record herein, and for the reasons set forth below, Defendant’s

Motion for Summary Judgment is granted in part and denied in part

and Plaintiffs’ Motion for Summary Judgment is granted in part and

denied in part. I. BACKGROUND1

Plaintiffs are a husband and wife “journalistic and academic

team,” who operate a website containing information on the

Jonestown Massacre. This case concerns Plaintiffs’ efforts to

uncover the names of the victims of the massacre and to obtain

other information about the FBI and CIA’s investigation into the

Peoples Temple Christian Church (“Peoples Temple”) and its leader,

Jim Jones. On the day of the Massacre, a member of the Peoples

Temple assassinated California Congressman Leo J. Ryan at an

airstrip in Port Kaituma, near Jonestown, Guyana. Later that day,

nine hundred and thirteen members of the Peoples Temple died in a

mass suicide at Jonestown.

On October 6, 1998, Plaintiff McGehee submitted a FOIA request

for “a copy of all lists of the people who died in Jonestown,

Guyana on November 18, 1978.” By letter dated November 23, 1998,

the FBI notified McGehee that the results of his FOIA request

consisted of 48,738 pages. On December 11, 1998, McGehee responded

that he wished to limit the scope of his request “to cover the 251

pages on Peoples Temple membership which [Mr. Phil Waltz]

identified during a cursory review of the Peoples Temple records in

the FBI’s larger collection of materials.” Def.’s Opp’n, Ex. D, at

1 [Dkt. No. 142-1]. McGehee stated that he did “not intend for this

1 Unless otherwise noted, the facts set forth herein are undisputed and drawn from the parties’ Statements of Undisputed Material Facts submitted pursuant to Local Civil Rule 7(h).

2 letter to serve as a limitation to access to other pages of the

FBI’s larger collection of materials on Peoples Temple.”

Between July 1 and July 5, 1999, Plaintiff Moore submitted five

further FOIA requests to the FBI regarding the Jonestown Massacre.

On May 24, 2000, the FBI sent Plaintiffs three CD-ROMs

containing the 48,738 pre-processed pages referenced in its

November 23 letter. These pages did not contain a list of victims.

However, the FBI maintains that these pages encompass all

disclosable pages it possesses relating to Jonestown.

By letters dated May 30, 2000, and July 2, 2000, McGehee filed

an appeal with the Department of Justice’s Office of Information

Policy (“OIP”), challenging FBI redactions within the pages

produced. By letter dated August 29, 2000, OIP informed McGehee

that a supplemental release of two pages would be made, but

otherwise affirmed the redactions.

On August 30, 2001, Plaintiffs filed their first Complaint

[Dkt. No. 1], seeking an order requiring Defendant to provide the

information sought. On June 6, 2003, Judge John G. Penn, then

presiding over this case, granted Plaintiffs’ Motion for Leave to

File an Amended Complaint [Dkt. No. 29]. Plaintiffs’ Amended

Complaint covered additional FOIA requests made to the FBI

regarding the Jonestown Massacre. Thereafter, the parties spent

several years negotiating in an effort to resolve this matter,

during which time Defendant made certain additional searches and

3 productions. The case was transferred to this Court on October 25,

2007 [Dkt. No. 80].

On July 2, 2009, after further negotiations between the

parties, Plaintiffs provided the FBI with a list of 105 documents,

comprising 424 pages, to serve as a representative sample for which

the FBI would provide justification of their redactions pursuant to

Vaughn v. Rosen,

(D.C. Cir. 1973), cert. denied,

(1974). On November 2, 2009, the FBI filed its first

Vaughn Index, but agreed to conduct a new declassification review

of the classified material within the original 48,738 pages. On

June 29, 2010, the FBI filed an updated Vaughn Index (the “Vaughn

Index”) [Dkt. Nos. 124, 125]. This Index reflected that the FBI

had, upon review of the sample, released 36 pages in full, 234

pages in part, and withheld 157 pages in full.2

On August 2, 2010, Defendant filed the present Motion for

Summary Judgment [Dkt. No. 126]. On September 22, 2010, Plaintiffs

filed their Opposition and Cross-Motion for Summary Judgment [Dkt.

No. 132]. On March 25, 2011, Defendant filed its Reply to

Plaintiffs’ Opposition and Opposition to Plaintiffs’ Cross-Motion

2 Because three pages from the original 424-page sample submitted by McGehee were subsequently released in full as a result of further declassification review, McGehee was permitted to choose three replacement pages for the sample. Supp. Hardy Decl. ¶ 39. Hence, the Vaughn Index reflects review of a total of 427 pages. Id.

4 for Summary Judgment [Dkt. No. 140]. On May 6, 2011, Plaintiffs

filed their Reply to Defendant’s Opposition [Dkt. No. 147].

II. STANDARD OF REVIEW

FOIA “requires agencies to comply with requests to make their

records available to the public, unless the requested records fall

within one or more of nine categories of exempt material.” Oglesby

v. United States Dep’t of the Army,

(D.C. Cir.

1996) (citing

(a), (b)). An agency that withholds

information pursuant to a FOIA exemption bears the burden of

justifying its decision, Petroleum Info. Corp. v. Dep’t of the

Interior,

(D.C. Cir. 1992) (citing

(a)(4)(B)), and must submit an index of all materials withheld.

Vaughn,

. In determining whether an agency has

properly withheld requested documents under a FOIA exemption, the

district court conducts a de novo review of the agency’s decision.

(a)(4)(B).

FOIA cases are typically and appropriately decided on motions

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

Governors of Fed. Reserve Sys.,

(D.D.C.

2011); Defenders of Wildlife v. U.S. Border Patrol,

(D.D.C. 2009). Summary judgment will be granted when the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with any affidavits or declarations, show that

there is no genuine issue as to any material fact and that the

5 moving party is entitled to judgment as a matter of law. See Fed.

R. Civ. P. 56(c).

In a FOIA case, the court may award summary judgment solely on

the basis of information provided in affidavits or declarations

when they (1) “describe the documents and the justifications for

nondisclosure with reasonably specific detail;” (2) “demonstrate

that the information withheld logically falls within the claimed

exemption;” and (3) “are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.”

Military Audit Project v. Casey,

(D.C. Cir.

1981). Such affidavits or declarations are accorded “a presumption

of good faith, which cannot be rebutted by ‘purely speculative

claims about the existence and discoverability of other

documents.’” SafeCard Servs., Inc. v. Sec. & Exch. Comm’n,

(D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v.

Cent. Intelligence Agency,

(D.C. Cir. 1981)).

III. ANALYSIS

A. Adequacy of the Search

Plaintiffs first make several specific challenges to the

adequacy of Defendant’s search. Pls.’ Opp’n 15-16. To demonstrate

that a search was adequate, the agency must demonstrate that its

search was “reasonably calculated to uncover all relevant

documents.” Weisberg v. United States Dep't of Justice,

(D.C. Cir. 1983). The agency must “show that it made a

6 good faith effort to conduct a search for the requested records,

using methods which can be reasonably expected to produce the

information requested.” Oglesby v. United States Dep’t of the Army,

(D.C. Cir. 1990). There is no requirement that an

agency search every record system in which responsive documents

might conceivably be found. Nation Magazine v. United States

Customs Serv.,

(D.C. Cir. 1995). However, the

agency cannot limit its search to only one record system if there

are others that are likely to produce the information requested.

.

The adequacy of any FOIA search is measured by a standard of

“reasonableness” and is dependent on the circumstances of the case.

Schrecker v. United States Dep't of Justice,

(D.C. Cir. 2003). The adequacy of a search is not determined by its

results, but by the method used to conduct the search itself.

Weisberg v. United States Dep't of Justice,

(D.C. Cir. 1984). To show reasonableness at the summary judgment

phase and to allow the court to determine if the search was

adequate, an agency must provide a “reasonably detailed affidavit,

setting forth the search terms and the type of search performed,

and averring that all files likely to contain responsive materials

(if such records exist) were searched.” Oglesby,

.

In response to Plaintiffs’ request for “all lists of the

people who died in Jonestown,” the FBI searched its Central Records

7 System (“CRS”) and Automated Case Support System (“ACS”) for

“Jonestown deaths, “Jonestown list,” and “Jonestown Casualties.”

Def.’s Mot. 34. These searches produced no results.

However, a search for “Jonestown” produced the “RYMUR”

file—the criminal investigatory file for the investigation into the

assassination of Congressman Ryan. Id.; Supp. Hardy Decl. ¶ 47

[Dkt. No. 124]. This file was determined to be the only file

related to the FBI’s investigation into Jonestown and contained the

48,738 pages produced to Plaintiffs. Supp. Hardy Decl. ¶¶ 48-50. In

response to Plaintiffs’ further FOIA requests, the FBI also

searched its ACS Universal Index “using each subject’s name to

locate any main investigatory files maintained at FBIHQ.” Id. at ¶

51. The FBI used “each subject’s name and included a six way

phonetic breakdown of the subject’s first, middle, and last name,

in addition to a basic search using the exact spelling of the name

provided by the plaintiff.”3 Id.

Plaintiffs argue that the FBI’s search was deficient for

several reasons. First, Plaintiffs argue that Defendant’s

description of the FBI’s search “is inadequate, consisting simply

of general statements that it conducted a search of 12 subjects of

the several requests and found no ‘main’ files.” Pls.’ Opp’n 16. To

the contrary, Defendant’s affidavit explains precisely what

3 The “subjects” are the individuals about whom Plaintiffs sought information in their additional FOIA requests. See Supp. Hardy Decl. ¶ 51.

8 searches it conducted and the databases searched. It constitutes a

“reasonably detailed affidavit, setting forth the search terms and

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

contain responsive materials (if such records exist) were

searched.” Oglesby,

. Further, the FBI’s search

picked up not only “main” files but also “cross-references,” which

are documents “in an FBI file on another subject of an

investigation in which the subject of the FOIA request is merely

mentioned or referred to, but in which he/she is not the main

subject of the investigation.” Eighth Hardy Decl. ¶ 52 [Dkt. No.

142-11].

Second, Plaintiffs argue that it is “implausible” that “there

was no separate file on the FBI’s investigation of [Larry]

Layton[]”—the subject of one of Plaintiffs’ later FOIA requests.

Pls.’ Opp’n 16. As the FBI has explained, however, Larry Layton was

tried and convicted “for acts relating to the assassination in

Jonestown.” Eighth Hardy Decl. ¶ 53. Hence, documents relating to

Layton would be in the RYMUR file, and, in fact, “Larry Layton is

listed as a main subject of the RYMUR file.”

Finally, Plaintiffs argue that a number of attachments to

documents are missing from the three CD-ROMs sent by the FBI. Pls.’

Opp’n 16. Defendant insists that “[m]any of the items alleged to be

missing were never listed as enclosures or attachments to the

document filed in this file, [the three CD-ROMs,] but were only

9 noted as attachments or enclosures to the offices listed in the

copy counts,” and that “[o]ther items were accounted for with a

deleted page information sheet or provided in another location in

the file.” Def.’s Reply 7; Eighth Hardy Decl. ¶ 4. In any case,

these missing attachments, in the context of the FBI’s search and

the size of its production, are not sufficient to render the FBI’s

search inadequate. See Nation Magazine,

n.7 (“the

failure to turn up . . . [a] document does not alone render the

search inadequate; there is no requirement that an agency produce

all responsive documents.”) (emphasis in original).

In sum, Defendant has submitted reasonably detailed affidavits

demonstrating that its search was “reasonably calculated to uncover

all relevant documents.” Weisberg,

.

B. Exemption 3

Defendant argues that it properly withheld information

pursuant to Exemption 3, which protects records that are

“specifically exempted from disclosure by statute ... provided that

such statute either . . . [requires withholding] in such a manner

as to leave no discretion on the issue, or . . . establishes

particular criteria for withholding or refers to particular types

of matters to be withheld.”

(b)(3).

When faced with an Exemption 3 defense to a FOIA claim,

district courts engage in the two-pronged inquiry identified in

Irons & Sears v. Dann,

(D.C. Cir. 1979), cert.

10 denied,

,

,

(1980).

First, the Court must determine whether the statute qualifies as an

Exemption 3 statute. Second, the Court must determine “whether the

information sought after falls within the boundaries of the

non-disclosure statute.” Id. Defendant cites two statutes that

justify withholding under Exemption 3. Each will be addressed in

turn.

1. Federal Rule of Criminal Procedure 6(e)

Defendant first argues that certain information must be

withheld because it relates to a grand jury investigation. The

Federal Rules of Criminal Procedure prohibit disclosure of “matters

occurring before [a] grand jury.” Fed. R. Crim. P. 6(e)(2); see In

re Motions of Dow Jones & Co., Inc.,

(D.C.

Cir. 1998), cert. denied sub nom. Dow Jones & Co., Inc. v. Clinton,

,

,

(1998). Rule 6(e) is a

statute for purposes of Exemption 3 because Congress affirmatively

enacted it. See Fund for Constitutional Gov't v. Nat'l Archives and

Records Serv.,

(D.C. Cir. 1981).

In this Circuit, the grand jury exception is limited to

material which, if disclosed, would “tend to reveal some secret

aspect of the grand jury's investigation, such . . . as the

identities of witnesses or jurors, the substance of testimony, the

strategy or direction of the investigation, the deliberations or

questions of jurors, and the like.” Senate of the Commonwealth of

11 Puerto Rico v. United States Dep't of Justice,

(D.C. Cir. 1987).

Here, the FBI invoked Exemption 3 in conjunction with Rule

6(e) only as to “Federal Grand Jury subpoenas, as well as the names

and identifying information of individuals subpoenaed to testify

before the Federal Grand Jury and information that identifies

specific records subpoenaed by the Federal Grand Jury.” Supp. Hardy

Decl. ¶ 76. Plaintiffs make no response to this statement, other

than generally to request in camera inspection of the withheld

documents. See Pls.’ Opp’n 16-21.

Given that the information withheld plainly implicated “the

identities of witnesses or jurors, the substance of testimony, the

strategy or direction of the investigation, the deliberations or

questions of jurors, and the like,” Defendant properly invoked

Exemption 3 in conjunction with Rule 6(e). Senate of the

Commonwealth of Puerto Rico,

. Hence, no in camera

inspection is necessary. Larson v. Dep’t of State,

(D.C. Cir. 2009) (If the agency's affidavits ‘provide specific

information sufficient to place the documents within the exemption

category, if this information is not contradicted in the record,

and if there is no evidence in the record of agency bad faith, then

summary judgment is appropriate without in camera review of the

documents.’”) (quoting Hayden v. Nat’l Sec. Agency,

(D.C. Cir. 1987)); Am. Civil Liberties Union v. United States

12 Dep’t of Defense,

(D.C. Cir. 2011) (“a court

should not resort to [in camera inspection] routinely on the theory

that ‘it can’t hurt.’”) (citing Larson,

).

2.

Defendant explains that certain information was withheld on

behalf of the CIA because that information “relates to the

organization, its functions, names, official titles, salaries and

numbers of personnel employed by the agency.” Supp. Hardy Decl. ¶

77. Defendant cites to two statutes that justify this withholding.

First, pursuant to the National Security Act of 1947 (“NSA”), the

“Director of National Intelligence shall protect intelligence

sources and methods from unauthorized disclosure.” 50 U.S.C. §

403–1(i)(1). Second, Section 6 of the Central Intelligence Agency

Act of 1949 (“CIA Act”) exempts the CIA from “any ... law which

require[s] the publication or disclosure of the organization,

functions, names, official titles, salaries, or numbers of

personnel employed by the [CIA].” 50 U.S.C. § 403g.

There is no question that both statutes cited by Defendant are

“precisely the type of statutes comprehended by exemption 3.”

Goland v. Cent. Intelligence Agency,

(D.C. Cir.

1978) (internal quotations omitted); Larson,

(“There is thus no doubt that section 403(d)(3) [now section

403-1(i)(1)] is a proper exemption statute under exemption 3.”)

(bracketed language in original) (quoting Fitzgibbon v. Cent.

13 Intelligence Agency,

(D.C. Cir. 1990); Halperin

v. Cent. Intelligence Agency,

(D.C. Cir. 1980)

(“Section 403g further provides for the exemption of the CIA from

any law that requires disclosure of the organization functions,

names, official titles, salaries or numbers of personnel employed

by the Agency.”).

Ralph S. DiMaio, the Information Review Officer for the

National Clandestine Service of the CIA, has provided a declaration

stating that the CIA has withheld “information relating to its

functions, foremost of which is the collection of foreign

intelligence through intelligence sources and methods, as well as

the names of CIA employees, and organizational data, including

location of facilities, file numbers and dissemination controls and

markings.” DiMaio Decl. ¶ 27 [Dkt. No. 126-1]. According to DiMaio,

“[t]he CIA has withheld this information to prevent the publication

of CIA personnel, structure, organization, and procedures, which

could be used as a tool for hostile penetration or manipulation.”

Plaintiffs reply that “there must be some limit on [using

(i)(1)] which relates to a practical assessment of

current actual national security needs” and that the Court should

permit an in camera inspection. Pls.’ Reply 9-10. “Given the

special deference owed to agency affidavits on national security

matters,” Defendant properly invoked Exemption 3 in conjunction

14 with

. Morley v. Cent. Intelligence Agency,

(D.C. Cir. 2007).

C. Exemptions 6 and 7(C)4

Defendant contends that a substantial portion of the withheld

documents are protected from disclosure by Exemption 7(C), which

protects information compiled for law enforcement purposes to the

extent that disclosure “could reasonably be expected to constitute

an unwarranted invasion of personal privacy.”

(b)(7)(C). In determining whether Exemption 7(C) applies, the

Court must balance the public interest in disclosure with the

privacy interests implicated by release of the material. Computer

Prof’ls for Soc. Responsibility v. United States Secret Serv.,

(D.C. Cir. 1996). Suspects, witnesses, investigators,

and third parties all have substantial privacy interests that are

implicated by the public release of law enforcement investigative

materials. Id.; Davis v. United States Dep’t of Justice,

(D.C. Cir. 1992). Disclosure of these materials can lead

to great embarrassment and reputational harm for these individuals.

Safecard,

. Indeed, disclosure could, in some

cases, lead to physical harm as well.

4 Because the FBI asserted Exemption 6 coextensively with Exemption 7(C) and, as explained in this section, the information sought was properly withheld under Section 7(C), there is no need to address the more stringent standards of Exemption 6.

15 Moreover, it “is well established that the only public

interest relevant for purposes of Exemption 7(C) is one that

focuses on the citizens’ right to be informed about what their

government is up to.” Davis,

(internal quotations

omitted). Whether disclosure of private information is warranted

under Exemption 7(C) turns upon whether the information “sheds

light on an agency’s performance of its statutory duties.” Dep’t of

Justice v. Reporters Comm. for Freedom of the Press,

,

773,

,

(1989). Thus, the

requested information must shed light on the agency’s own conduct

and not merely on the subject matter of the underlying law

enforcement investigation.

Our Court of Appeals has held

“categorically that, unless 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.”5 Safecard,

.

The FBI has asserted Exemption 7(C) “to protect names and/or

identifying information of: 1) Third Parties Merely Mentioned; 2)

Third Parties who Provided Information; 3) FBI Agents and Support

Personnel; 4) Non-FBI Federal Government Personnel; 5) Local and/or

5 Plaintiffs do not present any evidence, no less compelling evidence, that the FBI has engaged in illegal activity–at least as to the facts of this case.

16 State Government Employees; 6) Third Parties of Investigative

Interest; and 7) Victims and Survivors of Jonestown.” Def.’s Mot.

23. Defendant argues that the release of this information “would

not shed any light on how the FBI performed its statutory

investigative duties” but “could reasonably be expected to cause

harassment, embarrassment and/or unsolicited publicity which would

clearly constitute an unwarranted invasion of their privacy.” Id.

at 24.

Although Plaintiffs make a number of speculative arguments

relating to specific redacted documents, they argue essentially

that the interest in disclosure is particularly high in this case

due to “the depth and extent of the public interest in the

Jonestown records.”6 Pls.’ Opp’n 24. Plaintiffs further argue that

6 In their Reply, Plaintiffs also argue that there should be no privacy interest in information that was once published in a newspaper, even if that information is now difficult or impossible to find. Pls.’ Reply 14-17. Plaintiffs contend that the notion of “practical obscurity” is improperly drawn from the holding in Reporters Comm. for Freedom of the Press,

, because the holding in that case was limited to computerized rap sheets. Pls.’ Reply 15-17.

Plaintiffs’ reading of Reporters Comm. for Freedom of the Press is too cramped. As the Supreme Court stated, “the issue here is whether the compilation of otherwise hard-to-obtain information alters the privacy interest implicated by disclosure of that information.” Reporters Comm. for Freedom of the Press,

. The Supreme Court acknowledged “the privacy interest inherent in the nondisclosure of certain information even where the information may have been at one time public.” Id. at 767. Finally, the Supreme Court concluded that “the fact that an event is not wholly ‘private’ does not mean that an individual has no interest in limiting disclosure or dissemination of the information.” Id. at 770 (internal quotation omitted).

17 the identity of a person involved in the investigation into the

Jonestown Massacre “tells who the FBI thought relevant and

pertinent to its investigation” and “enables a requester to link

together various statements and evaluate the reliability of this

and other witnesses.” Pls.’ Reply 13. For this reason, Plaintiffs

contend that they cannot compile an accurate historical record

without knowing all relevant identities. Id.

Although the Jonestown Massacre may have elicited a great deal

of public attention, the relevant question is not whether the

public would like to know the names of FBI agents and victims

involved, but whether knowing those names would shed light on the

FBI’s performance of its statutory duties. Reporters Comm. for

Freedom of the Press,

. Plaintiffs have failed to

convincingly explain how knowing the names of the persons involved

would achieve that goal. Fitzgibbon,

(“there is no

reasonably conceivable way in which the release of the one

Our Court of Appeals has acknowledged the Supreme Court’s holding, observing that Reporters Comm. for Freedom of the Press “does cast doubt on the proposition that, simply because material has been made public at one time, it should be thought permanently in the public domain, even though it has since become ‘practical[ly] obscur[e].’” Davis,

(quoting Reporters Comm. for Freedom of the Press,

). In Davis, the Court of Appeals held that the plaintiff “has the burden of showing that there is a permanent public record of the exact portions” he or she believes should not be withheld because they are in the public domain.

. Thus, it is clear that in our Circuit a privacy interest may be implicated by “practically obscure” information. Reporters Comm. for Freedom of the Press

.

18 individual’s name . . . would allow citizens to know what their

government is up to.”) (internal quotations omitted).

Thus, after balancing the privacy interests implicated by

these documents against the public interest in their disclosure,

the Court concludes that the FBI properly withheld this information

under Exemption 7(C).

D. Exemption 7(D)

Defendant asserts that certain information is protected by

Exemption 7(D), which exempts from disclosure information that

could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.

(b)(7)(D).

To invoke Exemption 7(D), an agency must show either that a

source provided the information to the agency under express

assurances of confidentiality or that the circumstances support an

inference of confidentiality. United States Dep’t of Justice v.

Landano,

,

,

(1993). When determining the existence of an implied assurance

of confidentiality, the government is not entitled to a presumption

that all sources supplying information in the course of a criminal

investigation are confidential sources.

. Such an

19 assurance can be inferred, however, by the nature of the criminal

investigation and the informant’s relationship to it.

“A source

should be deemed confidential if the source furnished information

with the understanding that [the law enforcement agency] would not

divulge the communication except to the extent . . . necessary for

law enforcement purposes.”

.

Defendant asserts that the FBI received information from

individuals who were given an express assurance of confidentiality

as well as from individuals who were given an implied assurance of

confidentiality. Def.’s Mot. 27-28. Specifically, Defendant claims

that two witnesses were given express assurances of

confidentiality. The first “related that he/she had received

threats to his/her safety if they were to reveal any information

concerning the People’s [sic] Temple to law enforcement.” Supp.

Hardy Decl. ¶ 100. Further, documents relating to this individual

bore the words “protect identity” and “confidential source.”

Documents relating to the second individual bore the words “In

confidence.” Id. at 101.

Plaintiffs argue that this evidence is insufficient to

demonstrate an express assurance of confidentiality. Plaintiffs

contend that the declarant had no personal knowledge of what

assurances were given and that the phrases “protect identity,”

“confidential source,” and “In confidence” “may have been based on

an FBI agent’s misunderstanding of the circumstances . . . or were

20 simply part of a bureaucratic routine engaged in by FBI agents

regardless of whether an express pledge of confidentiality was

either asked for or received.” Pls.’ Opp’n 41-42.

Plaintiffs’ claims are simply too speculative to overcome the

presumption of good faith accorded Defendant’s affidavit. SafeCard,

. Plaintiffs have offered no specific reason–other

than pure speculation–to cast doubt on the fact that these two

sources were expressly assured that they would remain confidential.

See Campbell v. United States Dep't of Justice,

(D.C. Cir. 1998) (evidence of an express grant of confidentiality

“can take a wide variety of forms, including notations on the face

of a withheld document, the personal knowledge of an official

familiar with the source, a statement by the source, or

contemporaneous documents discussing practices or policies for

dealing with the source or similarly situated sources.”).

Defendant also argues that other individuals gave the FBI

information under an implied assurance of confidentiality. The FBI

explains that “based on the violent nature of the crime and the

events related by the third parties and because of the third

parties[’] relationships to the crime, it can be inferred from the

information provided that . . . there was an expectation of

privacy.” Supp. Hardy Decl. ¶ 102.

Plaintiffs offer two responses. First, they state that

“[w]hile there was a general fear of reprisals after Jonestown,

21 they were generated in the heat of the moment and never

materialized.” Pls.’ Opp’n 43. Hence, Plaintiffs argue that because

the informants’ fear of danger may have subsided, they no longer

are entitled to an implied promise of confidentiality. Second,

Plaintiffs contend that “the circumstances of at least some of the

interviews raise questions about the validity of any

confidentiality agreement because they were carried out under

conditions suggesting duress.”

Plaintiffs point to no authority for the claim that a source

can lose its implied assurance of confidentiality if and when it

subsequently becomes less afraid of reprisal. To the contrary, if

the agency “can demonstrate that the information was provided in

confidence at the time it was communicated to the FBI . . . the

source will be deemed a confidential one, and both the identity of

the source and the information he or she provided will be immune

from FOIA disclosure.” Dow Jones & Co., Inc. v. Dep’t of Justice,

(D.C. Cir. 1990) (internal quotations

omitted). Further, Plaintiffs offer no specific facts to suggest

that the confidentiality agreements were a result of duress. In

sum, their claim of duress is entirely speculative and

unpersuasive.

Once the agency has demonstrated that the withheld information

was given by a confidential informant, no balancing test is

necessary. Boyd v. Criminal Div. of United States Dep’t of Justice,

22

(D.C. Cir. 2007). Therefore, the FBI properly

withheld information under Exemption 7(D).7

E. Exemption 7(E)

Finally, Defendant asserts that certain information is

properly withheld pursuant to Exemption 7(E). 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.”

(b)(7)(E).

Information pertaining to law enforcement techniques and

procedures is properly withheld under Exemption 7(E) where

disclosure reasonably could lead to circumvention of laws or

regulations. See, e.g., Morley v. Cent. Intelligence Agency,

(D.D.C. 2006) (withholding information pertaining

7 Plaintiffs also argue that “the FBI has not indicated whether any of its alleged confidential sources testified at Layton’s trial,” which would waive confidentiality, and that the “FBI does disclose Permanent Source Symbol Numbers on occasion, particularly if the informant is deceased or has been publicly revealed.” Pls.’ Opp’n 44. Neither argument is convincing. See Davis,

(“Even when the source testifies in open court . . . he does not thereby waive the [government's] right to invoke Exemption 7(D) to withhold . . . information furnished by a confidential source not actually revealed in public.”) (internal quotations omitted); Campbell, 165 F.3d at 34 n.14 (“Death of a confidential source . . . is not relevant under exemption 7(D).”).

23 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. United States Dep't. of Justice,

(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. United States Dep't of Justice,

(D.D.C. 1991) (upholding FBI's decision to withhold information

about law enforcement techniques where disclosure would impair

effectiveness and, within context of documents, “could alert

subjects in drug investigations about techniques used to aid the

FBI”), aff'd,

(D.C. Cir. 1992).

The FBI seeks to protect information regarding “the type of

Stop Notice placed on certain survivors/victims.” Def.’s Mot. 31.

The FBI explains that the “placement of Stops through the

Immigration and Naturalization Service (now Immigration and Customs

Enforcement, Department of Homeland Security) is a technique

utilized by the FBI to obtain information concerning the movement

of individuals of interest.” Supp. Hardy Decl. ¶ 107. Because the

“decision of what type of stop to place with a particular agency,

such as INS, reflects what information the FBI is interested in,”

“[r]elease of the types of stops could allow individuals to

24 circumvent the law by avoiding discovery if they are aware of what

action the FBI is requesting from an agency by the placement of a

particular type of Stop.” Id.

Plaintiffs argue that the FBI has failed to “allege that this

technique is generally unknown to the public” and has “set[]

forward no facts which would support a contention that [the risk of

circumvention of the law] could reasonably be expected to occur.”

Pls.’ Opp’n 45. However, Exemption 7(E) may be used to protect

information where disclosure reasonably could lead to circumvention

of laws or regulations even where the existence of the general

technique is known to the public. See, e.g., Lewis-Bey v. United

States Dep’t of Justice,

(D.D.C. 2009)

(withholding the circumstances, timing, and location of electronic

surveillance); Piper,

(withholding polygraph

test information). In sum, Exemption 7(E) does not require that the

general technique be unknown to the public.

Because “[r]elease of the types of stops could allow

individuals to circumvent the law by avoiding discovery if they are

aware of what action the FBI is requesting from an agency by the

placement of a particular type of Stop,” the FBI properly withheld

information pursuant to Exemption 7(E).

F. Adequacy of the Vaughn Index and Segregability

Plaintiffs also challenge the adequacy of Defendant’s Vaughn

Index. They argue that the “index submitted in this case contains

25 numerous and pervasive flaws,” including failure to adequately

describe the content of what was withheld and failure to

sufficiently describe which exemptions the FBI has relied upon for

which portions of withheld information. Pls.’ Opp’n 47.

In Vaughn v. Rosen, the Court of Appeals held that an agency's

response to a FOIA request must include an index of all material

withheld in whole or in part.

. This index must

identify the material withheld and the statutory exemptions claimed

as justification for such withholding with sufficient detail “‘to

permit adequate adversary testing of the agency's claimed right to

an exemption,’ and to enable ‘the District Court to make a rational

decision whether the withheld material must be produced without

actually viewing the documents themselves, as well as to produce a

record that will render the District Court’s decision capable of

meaningful review on appeal.’” King v. United States Dep’t of

Justice,

(D.C. Cir. 1987) (quoting NTEU v. United

States Customs Serv.,

(D.C. Cir. 1986) and

Dellums v. Powell,

(D.C. Cir. 1980)). However,

the precise form of the Vaughn Index is immaterial; nor is the

index’s sufficiency determined by the length of its document

descriptions. Judicial Watch, Inc. v. Food & Drug Admin.,

(D.C. Cir. 2006). “Specificity is the defining requirement

of the Vaughn index and affidavit.” King,

(D.C.

Cir. 1987).

26 The form of Defendant’s “Vaughn Index” is twofold: Defendant

has submitted (1) multiple lengthy affidavits explaining why

certain exemptions are invoked, and (2) the entirety of the 427-

page sample with Exemptions listed beside redactions or on “Deleted

Page Information Sheets.” Although these documents do provide a

great deal of detail, many are missing critical information. In

particular, the Deleted Page Information Sheets contain absolutely

no information as to the author, date, contents, or recipients of

the missing pages. See Hussain v. United States Dep’t of Homeland

Sec.,

(D.D.C. 2009) (details “such as the

date, author or recipient of the document” are “often necessary ‘to

enable the court and opposing party to understand the withheld

information in order to address the merits of the claimed

exemptions.’”) (quoting Judicial Watch,

); Defenders

of Wildlife,

(D.D.C. 2009) (same). Similarly,

although it is often obvious from the context that redactions

included the names of individuals, in many instances it is entirely

unclear what substantive information was redacted. See, e.g.,

Vaughn Index, Ex. U, at Jonestown-11, Jonestown-22, Jonestown-29,

Jonestown-30.

Even 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.

552(b); Trans-Pac. Policing Agreement v. United States Customs

Serv.,

(D.C. Cir. 1999). A district court

has an affirmative duty to consider the issue of segregability sua

sponte and the failure to make express findings on segregability

constitutes reversible error. Morley,

.

Critically, “[i]n order to demonstrate that all reasonably

segregable material has been released, the agency must provide a

‘detailed justification’ for its non-segregability.” Johnson v.

Exec. Office for U.S. Attorneys,

(D.C. Cir. 2002)

(quoting Mead Data Cent., Inc. v. United States Dep’t of the Air

Force,

(D.C. Cir. 1977)). A “blanket declaration”

that documents do not contain segregable material is insufficient.

Wilderness Soc. v. United States Dep’t of Interior,

(D.D.C. 2004).

Although the Court was able to determine the propriety of the

asserted Exemptions based upon the Defendant’s affidavits, the

failure of the Vaughn Index to provide any specific information

regarding the missing pages and numerous redactions renders it

impossible to evaluate the FBI’s conclusions that the pages

included no segregable portions. See Johnson, 310 F.2d at 776;

Defenders of Wildlife,

. Therefore,

Defendant’s Vaughn Index is deficient and must be supplemented.

Further, Defendant’s declarant’s statement that “[e]very

effort was made to provide plaintiff with all material in the

28 public domain and with all reasonably segregable portions of

releasable material” falls far short of the specificity required to

justify non-segregation. Johnson, 310 F.2d at 776. Therefore,

Defendant has not carried its burden of demonstrating that all

segregable information has been disclosed.

G. Exemptions 1 and 2 and Pending Sealing Order

Defendant states that it “will no longer defend its use of

what was previously referred to as the ‘high’ (b)(2) exemption” and

that “it must adjust its declaration and supporting exhibits with

regard to its claims under FOIA exemption (b)(1).” Def.’s Reply 1-

2. Accordingly, Defendant will reprocess its entire production and

file supplemental briefing regarding Exemptions 1 and 2. Id.

Additionally, Defendant states that it has sent a formal request to

the Los Angeles County Police Department seeking its consent to the

lifting of a sealing order which, up until now, Defendant has cited

as precluding the release of certain information. Id. at 3. Once

again, “[t]he FBI intends to supplement its filing on this issue at

a later date.” Id. For these reasons, the Court will not address

those Exemptions at this time.8

8 In its Reply, Defendant indicates its intention to consider asserting additional exemptions when reprocessing this material. Def.’s Reply 2. Our Court of Appeals has made plain that “as a general rule, [the Government] must assert all exemptions at the same time, in the original court proceedings.” Maydak v. United States Dep’t of Justice,

(D.C. Cir. 2000). Although the proceedings before this Court have not fully concluded, “there may be circumstances in which withdrawal of an agency’s prime exemption claim should preclude the agency’s fresh

29 However, the Court has noted Plaintiffs’ concern over the time

Defendant has indicated it will take to reprocess its production.

See Pls.’ Reply 1-4. The Court acknowledges the burdens on the FBI,

but believes the one-year estimate to be unreasonable for the

following reasons. First, this Memorandum Opinion and its

accompanying Order have substantially decreased the amount of work

to be done by the FBI in this matter. Second, the FBI does not, as

it contends, have to “reprocess the entire roughly 48,738 pages of

response material.” Def.’s Reply 1. As Plaintiffs point out,

approximately 35,000 pages have been released in full, leaving

approximately 14,000 pages to be reviewed. Id. at 2-3. Of these

14,000 pages containing redactions or withheld in full, the vast

majority were withheld on the basis of Exemption 6 and 7(C), and

assertion of additional exemptions.” Senate of the Commonwealth of Puerto Rico,

; see also Ryan v. United States Dep’t of Justice,

, 792 (D.C. Cir. 1980) (warning of the “danger of permitting the Government to raise its FOIA exemption claims one at a time, at different stages of a district court proceeding”).

Now, eleven years after sending Plaintiffs the original pre- processed material, Defendant suggests that it will use its own withdrawal of Exemption 2 claims as an opportunity to drum up new exemptions. Permitting the Government to raise new exemptions at this stage would undermine “the interest in judicial finality and economy, which has ‘special force in the FOIA context, because the statutory goals--efficient, prompt, and full disclosure of information--can be frustrated by agency actions that operate to delay the ultimate resolution of the disclosure request.’” August v. Fed. Bureau of Investigation,

(D.C. Cir. 2003) (quoting Senate of the Commonwealth of Puerto Rico,

). Therefore, the Court will not consider new exemptions raised by Defendant at this late point in the litigation.

30 therefore do not need to be reviewed for withholding under other

exemptions. Id. at 3. Hence, the number of pages the FBI needs to

review is in reality a far cry from the 48,738 it claims. Based on

this information, the Court would expect that the FBI could

complete its reexamination within six months, at which time it

could also submit an adequate Vaughn Index.

IV. CONCLUSION

For the reasons set forth above, Defendant’s Motion for

Summary Judgment is granted in part and denied in part and

Plaintiffs’ Motion for Summary Judgment is granted in part and

denied in part. Defendant must file an updated Vaughn Index in

conformity with this Memorandum Opinion when it completes its

reevaluation of documents previously withheld under Exemptions 1

and 2 and the sealing order. An Order shall accompany this

Memorandum Opinion.

/s/

, 2011 Gladys Kessler United States District Judge

Copies to: Attorneys of record via ECF

31