UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MICHAEL SPATARO,

Plaintiff,

v. Civil Action No. 14-198 (RDM)

DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the motion of the U.S. Department of Justice to dismiss

or, in the alternative, for summary judgment. Plaintiff Michael Spataro, proceeding pro se,

brought this Freedom of Information Act (“FOIA”),

, action against the

Department seeking agency records that refer to him, including records from the criminal

investigation that culminated in Spataro’s trial and conviction before the United States District

Court for the Eastern District of New York. Like many FOIA cases, much of the relevant history

in this case occurred after suit was filed, and, as explained below, several searches conducted

after Spataro brought suit have resulted in the production of responsive records. Today, the

Court concludes that, with one exception, the Department’s post-complaint searches were

adequate, and it concludes that the Department has otherwise satisfied its obligations under

FOIA. The sole remaining issue involves the fate of eleven documents that were damaged—but,

perhaps, not lost—due to flooding caused by Hurricane Sandy. Because the status of those

documents remains unclear, further proceedings remain necessary.

The Court will, accordingly, GRANT in part and DENY in part the Department’s motion

to dismiss or, in the alternative, for summary judgment. Dkt. 26. I. BACKGROUND

Plaintiff Michael Spataro is currently incarcerated at the Fort Dix Federal Correctional

Institution. Dkt. 1 at 1. In 2006, he was convicted on charges of conspiracy to commit murder

in aid of racketeering, assault with a dangerous weapon in aid of racketeering, and using and

carrying a firearm during and in relation to a crime of violence. See United States v. Persico,

(2d Cir. 2008). He was sentenced to 338 months’ imprisonment.

In

July 2013, Spataro submitted a FOIA request to the FBI, seeking all agency records “pertaining”

to him, including all “main files” and “see reference files.” Dkt. 1-2 at 2. Spataro’s FOIA

request further specified that it “concern[ed] in part” the criminal investigation leading up to his

trial and conviction. Id. at 3 (referring to “Case No. 04-CR-911”); see also United States v.

Spataro, No. 04-cr-911,

(E.D.N.Y. July 10, 2006).

The FBI responded that it was “unable to identify main file records responsive to”

Spataro’s request. Dkt. 1-4 at 2. Spataro appealed that determination, stressing that he was

seeking “any and all records of any type that pertain to” him and that he was “placing no

limitations on [this] request.” Dkt. 1-5 at 2. He was not, in other words, limiting his request to

records found in the FBI’s “main file.” That appeal was considered by the Department’s Office

of Information and Policy (“OIP”), which concluded that the FBI had “conducted an adequate,

reasonable search” and had otherwise met its obligations under FOIA. Dkt. 1-6 at 2. With

respect to Spataro’s contention that the FBI had failed to conduct “a cross-reference search,” OIP

advised Spataro that he would need to provide additional information “to enable the FBI to

determine with certainty [whether] any cross-references it [might] locate,” were, in fact, related

to Spataro.

OIP suggested that Spataro might satisfy the FBI’s need for additional

information by, among other things, providing “the specific circumstances in which [he] had

2

contact with the FBI,” the dates and locations of “such contact,” his Social Security number, date

of birth, and home address, and the names of any relevant associates of his.

at 2–3.

Rather than provide those details, Spataro brought this FOIA action against the FBI. See

Dkt. 1 at 1. Shortly after Spataro brought suit, the FBI requested that the Court issue a “stay of

proceedings to permit [it] to locate and process all available responsive records.” Dkt. 12 at 1.

The Court granted that motion, ordered the substitution of the Department of Justice in place of

the FBI, and ordered that the Department “file periodic status reports every 30 days until such

time as processing of the records responsive to Plaintiff’s [FOIA] requests [was] completed.”

Dkt. 15. Over the course of the next several months, the Department identified potentially

responsive documents, produced over two hundred pages with certain redactions, and withheld

other records pursuant to various FOIA exceptions. See Dkts. 16–19. The FBI also identified

(1) “approximately [eleven] potentially responsive documents which had reportedly been stored

in a closed file facility in New Jersey that sustained significant flood damage during Hurricane

Sandy,” Dkt. 16 at 3, and (2) “[f]our potentially responsive documents,” which it was “unable to

. . . locate[] [in the New York Field Office] even after extensive efforts,” Dkt. 18 at 2. With

respect to the flood-damaged documents, the Department explained:

Eleven potentially responsive documents were damaged in the flood that occurred on October 29, 2012. Remediation is ongoing for the damaged records in that facility. At this time, the FBI is unable to determine if or when those records affected by the flood may become available for review. Even assuming these documents were to become available at some later date, the FBI cannot be certain that they actually contain responsive information.

at 2–3. Despite the unavailability of these fifteen documents, the Department reported that “it

ha[d] produced all releasable materials located that were responsive to [Spataro’s] FOIA

request.” Dkt. 19 at 2. The Department suggested that the Court nonetheless leave the stay in

place to provide Spataro with time to review the production and to “report[] back to the Court on

3

whether some or all of the issues have been resolved to his satisfaction.”

It subsequently

requested that the Court order Spataro to file a status report “identifying any issues remaining to

be decided in the matter.” Dkt. 21-1 at 1. Spataro, in turn, filed a motion for leave to amend his

complaint to do just that. See Dkt. 23. The Court granted his motion, and denied as moot the

Department’s request that the Court order Spataro to identify the issues still in dispute. See

Minute Order (Feb. 11, 2015).

Spataro’s amended complaint identifies those aspects of the FBI’s search and production

that he contends fail to comply with FOIA. First, he identifies seventy pages of records that he

contends were improperly redacted pursuant to FOIA Exemptions 6, 7(C), and 7(D). Dkt. 24 at

1–3 (Am. Compl. ¶¶ 4, 8, 12). Second, he objects to the FBI’s failure to produce the eleven

documents that were apparently damaged during Hurricane Sandy.

at 2–4 (Am. Compl. ¶¶ 5,

9, 15–18). Third, he identifies 143 pages that the FBI evidently withheld from a production on

July 31, 2014, and alleges that the FBI has failed to explain what happened to those records.

(Am. Compl. ¶¶ 19–20). Fourth, without identifying a legal deficiency, he notes that the

FBI withheld six pages of records pursuant to FOIA Exemption 3 and Title III,

et seq.

(Am. Compl. ¶ 21). Fifth, he observes that the FBI did not produce fourteen pages of

records in its September 2014 production, “without [a] clearly defined or stated justification.”

(Am. Compl. ¶ 22). And, finally, he alleges generally that the FBI’s reliance on FOIA

Exemption 7(C) and 7(D) was improper due to the Department’s disclosure of certain

information at issue at his trial and due to “the Government’s misconduct.”

at 4–7 (Am.

Compl. ¶¶ 23–34).

In response to the amended complaint, the Department filed the pending motion to

dismiss or, in the alternative, for summary judgment, Dkt. 26, along with the declaration of

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David M. Hardy, the Section Chief of the Record/Information Dissemination Section (“RIDS”)

of the FBI’s Records Management Division, detailing the steps taken by RIDS in responding to

Spataro’s FOIA request. See Dkt. 26-1. Despite the breadth of his amended complaint,

Spataro’s opposition brief raises only two objections. First, he contends that “the search for

responsive records in this case was inadequate” because (a) the FBI “declare[d] that remediation

is ongoing respecting the [eleven] potentially responsive records that were stored at a closed file

storage facility in New Jersey,” and (b) under the facts as presented by the Hardy declaration, “a

reasonable search was not effected concerning” the four potentially responsive documents from

the New York Field Office that the FBI was unable to locate. Dkt. 27 at 3–4. Second, he “avers

that the FBI has not provided a V[aughn] index and thus hinders Plaintiff’s ability to respond

appropriately to its motion for summary jud[g]ment.”

.

The factual record, however, has continued to evolve. After Spataro filed his opposition,

the Department twice requested additional time to file its reply. See Dkt. 28; Dkt. 29. In the first

request, the Department asserted that it “anticipate[d] the need to secure a supplemental

declaration” regarding “why some documents cannot be located following a flood at the building

where they were stored before it was struck by [H]urricane Sandy.” Dkt. 28 at 2. That motion

was granted. Minute Order (May 14, 2015). The second request explained that the FBI was

continuing to investigate the status of the records affected by Hurricane Sandy. Dkt. 29 at 2.

That request also advised the Court that the FBI “had located three [of the] missing file volumes”

from the New York Field Office and that the FBI needed time to review those files to determine

whether they contained any responsive records.

The Court granted that request for an

extension, and it ordered that the parties file status reports in several weeks advising the Court

5

(1) whether any additional records were found and released and (2) whether any further release

of records mooted portions of the dispute. See Minute Order (June 10, 2015).

The Department’s status report indicated that “the formerly missing documents . . . were

subsequently located” and that RIDS “received the records and processed them,” ultimately

releasing all “non-exempt portions of the responsive records.” Dkt. 30-1 at 1. As explained in

greater detail in the second declaration of David Hardy, the FBI determined that one of the four

missing files “was an exact duplicate” of records already released, that a second file contained

forty-eight pages referring to Spataro, and that “the two remaining cross-references . . . were on

the inventory list of” files damaged by Hurricane Sandy and were “awaiting remediation.” Dkt.

33-1 at 4–5 (Second Hardy Decl. ¶¶ 6–8). Based on these developments, the FBI argued that the

issue regarding the previously missing New York Field Office files was now moot. Dkt. 30 at 2.

Shortly thereafter, the Court ordered that Spataro indicate whether he intended to

challenge any of the redactions made to the recently released records, and set a schedule to

complete the briefing on the Department’s motion to dismiss or, in the alternative, for summary

judgment. Minute Order (July 31, 2015). In response to that order, Spataro (1) challenged the

FBI’s application of FOIA Exemption 3 to what he characterized as “a pre-Title III check;” (2)

renewed his opposition to Defendant’s motion to dismiss, or in the alternative, for summary

judgment; (3) again questioned the status of the flood-damaged records; and (4) requested both a

Vaughn index and in camera review of the documents that he argued contained excessive

redactions. See Dkt. 31. And, in yet another filing, Spataro elaborated on his objections to the

redactions in the recent production, arguing that the FBI improperly redacted “‘PRE-TITLE III’

preliminary checks, made in advance of seeking to secure TITLE III authorization” and that

“[t]he exemptions claimed under [

(b)(6)] . . . would clearly not have been the

6

subject of redaction, and [§ 552(b)(7)(C)] . . . likewise, would not have constituted the material

redacted.” Dkt. 32 at 1–2.

Pursuant to the Court’s order, the Department then filed its reply brief in support of its

long-pending dispositive motion. See Dkt. 33. Finally, the Court entered an order cautioning

Spataro that the Court would accept as true any uncontroverted facts submitted by the

Department and allowing Spataro to make a further filing within thirty days. Dkt. 34. To date,

Spataro has declined to accept that invitation.

II. LEGAL FRAMEWORK

The Freedom of Information Act is premised on the notion that an informed citizenry is

“vital to the functioning of a democratic society, needed to check against corruption and to hold

the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co.,

(1978). It thus mandates that an agency disclose records on request, unless they fall within

one of nine exemptions. “These exemptions are explicitly made exclusive and must be narrowly

construed.” Milner v. Dep’t of Navy,

, 565 (2011) (citation and quotation marks

omitted). As relevant here, Exemption 3 “provides that FOIA’s disclosure obligation ‘does not

apply to matters that are . . . specifically exempted from disclosure by [another] statute,’ if the

statute ‘(i) requires that the matters be withheld from the public in such a manner as to leave no

discretion on the issue,’ or ‘(ii) establishes particular criteria for withholding or refers to

particular types of matters to be withheld.’” Labow v. U.S. Dep’t of Justice,

(D.C. Cir. 2016) (quoting

(b)(3)(A)). Exemption 6 protects information about

individuals in “personnel and medical files and similar files” when its disclosure “would

constitute a clearly unwarranted invasion of personal privacy.”

(b)(6).

Exemptions 7(C) and 7(D) protect from disclosure “records or information compiled for law

7

enforcement purposes,” but “only to the extent that” disclosure “could reasonably be expected to

constitute an unwarranted invasion of personal privacy,”

§ 552(b)(7)(C), or “could reasonably

be expected to disclose the identity of a confidential source . . . [or] information furnished by a

confidential source,” id. § 552(b)(7)(D).

“FOIA cases are typically resolved on motions for summary judgment under Federal

Rule of Civil Procedure 56.” Shapiro v. U.S. Dep’t of Justice,

(D.D.C.

2016). To prevail on a summary judgment motion, the moving party must demonstrate that there

are no genuine issues of material fact and that he or she is entitled to judgment as a matter of

law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,

(1986). “In a FOIA

action, the Court may award summary judgment to an agency solely on the basis of information

provided in affidavits or declarations that describe ‘. . . the justifications for nondisclosure [of

records] with reasonably specific detail . . . and are not controverted by either contrary evidence

in the record nor by evidence of agency bad faith.’” Thomas v. FCC,

(D.D.C. 2008) (quoting Military Audit Project v. Casey,

(D.C. Cir. 1981)).

The Court reviews the agency’s decision de novo, and the agency bears the burden of sustaining

its action.

(a)(4)(B).

III. ANALYSIS

The Department argues that (1) it has sufficiently justified its withholdings under FOIA

Exemptions 3, 6, 7(C), and 7(D); and (2) its search for records responsive to Spataro’s FOIA

request was adequate. The Court discusses each argument in turn.

A. Withholdings

The Department bears the burden of identifying “the specific statutory exemption relied

upon” in withholding records and demonstrating “that the exemption applies to the documents in

question.” Jordan v. U.S. Dep’t of Justice,

(D.C. Cir. 1978) (en banc). Here, 8

the Department identifies four statutory exemptions to justify the FBI’s redactions and

withholdings. As explained below, the Court concludes that most, but not all, of these redactions

and withholdings were proper, as was the FBI’s decision not to provide a formal Vaughn index.

1. Exemption 3

Exemption 3 shields from disclosure all records that are “specifically exempted from

disclosure by statute,” so long as the statute upon which the agency relies either “requires that

the matters be withheld from the public 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.” 1

(b)(3)(A). “Exemption 3 differs from other FOIA exemptions in that

its applicability depends less on the detailed factual contents of specific documents” and more on

“the existence of a relevant statute and the inclusion of withheld material within that statute’s

coverage.” Goland v. CIA,

(D.C. Cir. 1978). The Department asserts that the

non-disclosure provisions of 18 U.S.C. §§ 2510–2520,

, and Federal Rule of

Criminal Procedure 6(e) authorize it to withhold various types of information from the records

responsive to Spataro’s FOIA request. Dkt. 26 at 7–9. Because Spataro has not challenged any

withholdings justified by the latter two exemptions, the Court restricts its inquiry to those linked

to the non-disclosure provisions of Title III of the Omnibus Crime Control and Safe Streets Act

(“Title III”), 18 U.S.C. §§ 2510–2520. Specifically, Spataro disputes only the withholding of

“PRE-TITLE III checks,” which he defines as “preliminary checks, made in advance of seeking

to secure TITLE III authorization.” Dkt. 32 at 1. He argues that these checks “would not be . . .

1 The exemption also provides that any statute “enacted after the date of enactment of the OPEN FOIA Act of 2009,” Pub L. No. 111–83, § 564,

, 2184 (2009), must “specifically cite[] to” the exemption.

(b)(3)(B). The statutes relied upon by the Department predate the OPEN FOIA Act.

9

exempt under 18 U.S.C. [§] 2518 as represented,” but that the FBI has nevertheless refused to

produce the notes that Spataro believes would result from such checks. See Dkt. 31 at 2.

Title III establishes a comprehensive regime regulating the procurement, use, and

disclosure of federal law enforcement wiretaps. To obtain a wiretap, a law enforcement officer

must submit an application “in writing upon oath or affirmation to a judge of competent

jurisdiction.”

(1). The statute requires that such an application include “the

identity of the investigative or law enforcement officer making the application, and the officer

authorizing the application” and a “complete statement of the facts and circumstances” giving

rise to the application. See

§ 2518(1)(a)–(b). If the judge concludes that the statutory

requirements are met, he or she “may enter an ex parte order” authorizing the wiretap. Id.

§ 2518(3). Title III provides that any communications intercepted by the wiretap shall be

recorded “if possible,” id. § 2518(8)(a), and that the recordings shall be used only by law

enforcement officers “to the extent such use is appropriate to the proper performance of [their]

official duties,” id. § 2517. More importantly for present purposes, Title III also provides that

the “[a]pplications made and orders granted” for the authorization of wiretaps shall be sealed and

“disclosed only upon a showing of good cause.” Id. § 2518(8)(b).

In support of its motion, the Department offers two declarations from David Hardy, the

Chief of RIDS. See Dkt. 26-1 (First Hardy Decl.); Dkt. 33-1 (Second Hardy Decl.). In both

declarations, Hardy attests that “the information withheld from disclosure pursuant to the

provisions of Title III consists of the identities of the individuals targeted for interception

through wiretap[] and information obtained via the Title III wiretap.” Dkt. 26-1 at 16–17 (First

Hardy Decl. ¶ 39); Dkt. 33-1 at 8 (Second Hardy Decl. ¶ 17). The Hardy declarations’

delineation of the material withheld thus implies that, despite Spataro’s belief that notes

10

produced prior to Title III applications exist, the FBI did not withhold any such “pre-Title III

Checks” under Exemption 3. To the extent that understanding is incorrect—and the FBI

withheld information that was produced in advance of seeking Title III authorizations and that

was not used in the actual applications, see Ewell v. U.S. Dep’t of Justice,

(D.D.C. 2016)—the FBI has not adequately justified its interpretation of the scope of

Exemption 3. Although it is possible—or even likely—that such information would be subject

to one or more FOIA exemptions, the Court cannot grant summary judgment in favor of the FBI

on this question without further clarification of what exactly was withheld. The Court considers,

then, only the FBI’s withholding of “the identities of the individuals targeted for interception

through wiretap[] and information obtained via the Title III wiretap.” Dkt. 26-1 at 16–17 (First

Hardy Decl. ¶ 39); Dkt. 33-1 at 8 (Second Hardy Decl. ¶ 17).

Neither type of information need be disclosed. Under D.C. Circuit precedent,

“‘intercepted communications’ obtained pursuant to a Title III wiretap fall ‘squarely within the

scope’ of Exemption 3.” Ewell,

(quoting Lam Lek Chong v. DEA,

(D.C. Cir. 1991)). The same is true of the wiretap application (along with all

supporting material) and the court’s orders authorizing the wiretap, which Title III contemplates

will be issued in an ex parte proceeding. See

(3); see also Ewell,

; Sinito v. U.S. Dep’t of Justice, No. 87-814,

, at *6 (D.D.C. July

12, 2000); Butler v. U.S. Dep’t of Justice, No. 86-2255,

, at *8–9 (D.D.C. Feb. 3,

1994). Moreover, because a court’s order authorizing a wiretap is protected, the same is also

true of the identity of the person “targeted” for interception; a person’s status as a “target” exists

solely by virtue of the substance of the court’s ex parte order, and thus all information regarding

that status is necessarily derived (directly or indirectly) from the court’s order. See 18 U.S.C.

11

§ 2518(4)(a) (requiring that the ex parte court order shall “specify . . . the identity of the person .

. . whose communications are to be intercepted”). The Court, accordingly, concludes that the

identity of the person targeted by the wiretap falls within the exempt information. See Roberts v.

FBI,

, 101–02 (D.D.C. 2012); see also Pinson v. U.S. Dep’t of Justice,

, 81–82 (D.D.C. 2016); Miller v. U.S. Dep’t of Justice,

, 22–23

(D.D.C. 2012).

2. Exemptions 6 and 7(C)

Spataro next disputes the Department’s application of Exemptions 6 and 7(C) to redact

information from approximately seventy pages of records released between July and September

2014, see Dkt. 24 at 1–3, and another forty-eight pages released in July 2015, see Dkt. 31 at 1.

The only arguments he offers in support of his challenge to the redactions in the 2014

productions are (1) that they “shield probable evidence of misconduct on the part of the

Government,” Dkt. 24 at 7 (Am. Compl. ¶ 33); and (2) that they relate to a cooperating witness

who testified against Spataro at trial, Dkt. 24-4 at 10–12 (Spataro Decl.). The withheld

information is necessary, in Spataro’s view, to demonstrate inaccuracies in that witness’s

testimony and to shed further light on the cooperator’s agreement with the Government.

With respect to the redactions in the 2015 production, Spataro argues that “[t]he exemptions

claimed under [Exemption 6] . . . would clearly not have been the subject of redaction, and

[Exemption 7(C),] likewise, would not have constituted the material redacted.” Dkt. 32 at 2.

Exemptions 6 and 7(C) “seek to protect the privacy of individuals identified in certain

agency records.” ACLU v. U.S. Dep’t of Justice,

(D.C. Cir. 2011). Under

Exemption 6, “personnel and medical files and similar files” may be withheld if disclosure

“would constitute a clearly unwarranted invasion of personal privacy.”

(b)(6).

Under Exemption 7(C), “records or information compiled for law enforcement purposes” may be 12

withheld “to the extent that” disclosure “could reasonably be expected to constitute an

unwarranted invasion of personal privacy.”

§ 552(b)(7). The D.C. Circuit has long applied a

categorical rule under Exemption 7(C)—known as the “SafeCard rule”—“permitting an agency

to withhold information identifying private citizens mentioned in law enforcement records,

unless disclosure is ‘necessary in order to confirm or refute compelling evidence that the agency

is engaged in illegal activity.’” Schrecker v. U.S. Dep’t of Justice,

(D.C. Cir.

2003) (quoting SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991)). This rule

covers the redaction of “names of FBI or other federal government personnel,” as well as the

names or other identifying information relating to individuals “who have not previously been

publicly implicated in the . . . investigation.” See Citizens for Responsibility and Ethics in

Washington v. U.S. Dep’t of Justice (CREW II),

(D.C. Cir. 2017). However,

when the “privacy interests” of those who the Government seeks to protect “have been

diminished by prior disclosures, including through guilty pleas and convictions” that occurred

“in connection with” the investigation giving rise to the disputed records, “the withholding of

information pursuant to Exemptions 6 and 7(C) must be subjected to a particularized weighing of

the public and privacy interests that would implicated by the disclosure sought.”

at 682–83.

As an initial matter, when the information at issue was “‘compiled for law enforcement

purposes,’ thus implicating Exemption 7(C),” the Court has “no need to consider Exemption 6

separately because all information that would fall within the scope of Exemption 6 would also be

immune from disclosure under Exemption 7(C).” Roth v. U.S. Dep’t of Justice,

(D.C. Cir. 2011). Thus, the Court need only analyze whether the FBI has properly invoked

13

Exemption 7(C).2 Whether information was gathered for law enforcement purposes turns 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, Office of Prof’l Responsibility,

, 176–77 (D.C. Cir.

2002) (internal quotation marks and citation omitted). Applying that test, there is little doubt that

the records involved in this case were compiled for law enforcement purposes, a fact not

disputed by Spataro. See Dkt. 1-5 at 2 (“It is inconceivable that your office would claim there

were no responsive records to my request. I have been arrested, indicted, and thereafter

prosecuted, based upon investigation(s) involving the Federal Bureau of Investigation . . . .”).

Because the disputed redactions are contained in records “compiled for law enforcement

purposes,”

(b)(7), the Court must next consider whether the requested disclosures

would “reasonably be expected to constitute an unwarranted invasion” of the privacy interests of

those whose information has been withheld,

§ 552(b)(7)(C). The first Hardy declaration

describes the information the FBI withheld under Exemption 7(C) as consisting of the “names

and/or identifying information of” (1) “personnel from Federal Agencies . . . who were

responsible for conducting, supervising, and/or maintaining the investigative activities reflected

in the documents responsive to [P]laintiff’s [FOIA] request;” (2) “FBI support employees and

other non-FBI Federal Law Enforcement employees;” (3) “third-party individuals who are of

investigative interest to the FBI and/or other law enforcement agencies;” (4) “third parties

merely mentioned in the responsive documents;” (5) “an individual who provided information to

2 Were the Department to have asserted Exemption 6 but not Exemption 7(C) in withholding certain information, the Court would need to examine the applicability of Exemption 6. However, “each time the FBI applied Exemption 6 to FBI records containing personal information related to particular individuals, it also applied Exemption 7(C).” Dkt. 26 at 12; see also Dkt. 33-1 at 10–13 (Second Hardy Decl. ¶¶ 21 n.7, 23–25).

14

the FBI during the course of the investigation described in the responsive documents” after

receiving an express assurance of confidentiality; and (6) “local law enforcement personnel

responsible for conducting, supervising, and/or maintaining the investigative activities reported

in the documents.” Dkt. 26-1 at 20–25 (First Hardy Decl. ¶¶ 48–53). Hardy also identifies the

specific pages on which each category of information was located and withheld. Id. at 22–25

(First Hardy Decl. ¶¶ 49 n.19, 50 n.20, 51 n.21, 52 n.22, 53 n.23). The second Hardy declaration

describes the material withheld under 7(C) as falling into the first, second, and third of these

categories of information, Dkt. 33-1 at 11–13 (Second Hardy Decl. ¶¶ 23–25), and similarly lists

which pages contain each type of redaction, id. at 12–12 (Second Hardy Decl. ¶¶ 24 n.8, 25 n.9).

Application of the SafeCard rule justifies the FBI’s decision not to disclose these names

and identifying information. Withholdings in the first and second buckets contain the “names of

FBI or other federal government personnel.” CREW II,

. Information in buckets

three, four, and five “identif[ies] private citizens.” Schrecker,

. And, the

information contained in the sixth bucket relates to “local law enforcement personnel,” Dkt. 26-1

at 25 (First Hardy Decl. ¶ 53), and, in particular, “investigating agents,” Roth,

.

All of the individuals within these groups “have a ‘substantial interest’ in ensuring that their

relationship to the investigations ‘remains secret.’”

(quoting Schrecker,

).

Under the SafeCard rule, withholding these types of information is justified to prevent an

unwarranted intrusion on those individuals’ substantial privacy interests.

The D.C. Circuit has identified only a few situations in which SafeCard’s balancing does

not hold. Of the two potentially relevant here, neither weighs in favor of disclosure. First,

disclosure would be warranted if producing the information were “necessary in order to confirm

or refute compelling evidence that the agency is engaged in illegal activity.” Schrecker, 349

15

F.3d at 661 (quoting SafeCard,

). That is what Spataro has alleged, but “[t]o

establish such a public interest and thereby trigger the Exemption 7(C) balancing of public and

private interests, the requester ‘must produce evidence that would warrant a belief by a

reasonable person that the alleged Government impropriety might have occurred.’” Hodge v.

FBI,

(D.C. Cir. 2013) (quoting Nat’l Archives & Records Admin. v. Favish,

(2004)). Here, Spataro offers only his own, unsupported declaration, which

sets forth his belief that a cooperating witness was given an improper payment by the

Government to testify at his trial and that the Government “withheld critical evidence” from him

before his trial, among other improper acts. Dkt. 24 at 5–6. Although serious if true, these

unsupported allegations alone do not, without more, “warrant a belief by a reasonable person”

that the misconduct occurred. See Boyd v. Criminal Div. of U.S. Dep’t of Justice,

(D.C. Cir. 2007) (noting that “[u]nsubstantiated assertions of government wrongdoing . . . do

not establish ‘a meaningful evidentiary showing’” sufficient to overcome invocation of

Exemption 7(C)). The Court therefore concludes that Spataro has not offered sufficient

evidence—or, for that matter, any probative evidence—to trigger this exception to the SafeCard

rule.

Second, disclosure would be warranted if the privacy interests of the individuals the FBI

seeks to protect had “been diminished by prior disclosures, including guilty pleas and

convictions” that occurred “in connection with” the investigation from which the disputed

records arose. CREW II, 854 F.3d at 682–83. Although the investigations at issue led to

criminal prosecutions, see, e.g., Persico,

, the first Hardy declaration attests that

the FBI examined “each responsive page” at issue “to identify non-exempt information that

could be reasonably segregated” and concluded that “the only information withheld by the FBI

16

consist[ed] of information that would trigger reasonably foreseeable harm to one or more

interests protected by the cited FOIA exemptions.” Dkt. 26-1 at 30–31 (First Hardy Decl. ¶ 65);

see also Dkt. 33-1 at 10–13 (Second Hardy Decl. ¶¶ 22–25). Spataro, in turn, has failed to

identify any specific information that was disclosed at trial or otherwise, triggering a diminished

privacy interest. Because declarations provided by agencies are generally “accorded a

presumption of good faith, which cannot be rebutted by purely speculative claims,” SafeCard,

(internal quotation marks omitted), and because Spataro has failed to identify

the specific, putatively private information that he contends has already been disclosed, the Court

concludes that this SafeCard exception is also inapplicable.

The Court, accordingly, holds that the FBI properly relied on Exemption 7(C).

3. Exemption 7(D)

Spataro also challenges the FBI’s application of Exemption 7(D) to withhold information

on the same seventy pages of records that it released between July and September 2014. To

apply this exemption, an agency must show (1) that the records at issue were compiled for law

enforcement purposes and (2) that their disclosure “could reasonably be expected to disclose the

identity of a confidential source . . . [or] information furnished by a confidential source.”

(b)(7)(D). For the reasons explained above, the records involved in this case were

compiled for law enforcement purposes and thus the first condition is satisfied. The second

condition is discussed at length in the first Hardy declaration. Dkt. 26-1 at 25–30 (First Hardy

Decl. ¶¶ 54–64).

The Hardy declaration addresses four buckets of information that the Department

contends is subject to protection under Exemption 7(D). First, “the FBI protected from

disclosure the names, identifying information about, and information provided to the FBI during

the course of the investigations at issue here under express grants of confidentiality.” Dkt. 26-1 17

at 27 (First Hardy Decl. ¶ 57). According to Hardy, these individuals “specifically requested that

their identities not be revealed due to fear of reprisal . . . [and t]he FBI and/or law enforcement

officials expressly promised th[ese] [third parties] that their identit[ies] and the information they

provided would not be disclosed.”

(First Hardy Decl. ¶ 57). Second, “the FBI protected the

source file numbers of permanent confidential sources of the FBI.”

(First Hardy Decl. ¶ 58).

These informants received “assurance[s] of confidentiality” in order to “persuade[]” them “to

continue their assistance in providing information to the FBI in the future,”

(First Hardy

Decl. ¶ 60), and, according to Hardy, “[d]isclosure of confidential source file numbers at various

times and in various documents could ultimately . . . reveal the connections of confidential

informants to the information [they] provided,”

(First Hardy Decl. ¶ 59). Third, “the

FBI protected from disclosure the permanent source symbol numbers of confidential sources of

the FBI,” which are assigned “to confidential informants who report . . . pursuant to an express

assurance of confidentiality.”

(First Hardy Decl. ¶ 62). These symbols are used in lieu

of the sources’ “true names,” and, according to Hardy, disclosure of this information could also

be used to identify confidential informants.

at 29–30 (First Hardy Decl. ¶¶ 62–63). Finally,

the FBI redacted “the names, identifying information, and information provided by third parties

under circumstances in which confidentiality can be inferred.”

at 28–29 (First Hardy Decl.

¶ 61). As Hardy explained, “[t]hese third parties provided information of value concerning the

criminal activities of [Spataro] and the Colombo [La Cosa Nostra] Family organized crime

members pertaining to murder, drug crimes, and racketeering,” and, given the “great peril” these

individuals faced, “it is reasonable to infer that [they] cooperated with the FBI only with the

expectation of confidentiality.”

at 28–29 (First Hardy Decl. ¶ 61).

18

As the D.C. Circuit explained in Campbell v. U.S. Department of Justice, “[t]o withhold

information under Exemption 7(D) by express assurances of confidentiality, the FBI must

present ‘probative evidence that the source did in fact receive an express grant of

confidentiality.’”

(D.C. Cir. 1998) (quoting Davin v. U.S. Dep’t of Justice,

(3d Cir. 1995)). “Such evidence 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.”

Here, “[t]he FBI

declaration simply asserts that various sources received express assurances of confidentiality

without providing any basis for the declarant’s knowledge of this alleged fact.”

at 34–35.

Although the Court is sensitive to the FBI’s need to protect confidential informants—especially

when investigating organized crime—it can satisfy its burden under FOIA without posing any

risk to confidential informants. A mere “boilerplate” assertion, however, “will not do.” Citizens

for Responsibility and Ethics in Washington v. U.S. Dep’t of Justice,

(D.C.

Cir. 2014). Thus, if the Department wishes to invoke 7(D), it must provide additional detail, like

that discussed in Campbell, to carry its burden. See

.

On four pages, the FBI has also “protected the names, identifying information, and

information provided by third parties under circumstances in which confidentiality can be

inferred.” Dkt. 26-1 at 28–29 (First Hardy Decl. ¶ 61). Hardy explains that “[t]hese third parties

provided information of value concerning the criminal activities of plaintiff and the Colombo [La

Cosa Nostra] Family organized crime members pertaining to murder, drug crimes, and

racketeering.”

(First Hardy Decl. ¶ 61). Beyond the general risk of informing police

about a violent crime, the danger to these informants was heightened by the “plaintiff and his

19

associates’ violent character,” which has been “proven by their [conviction for] criminal

activities such as murder, kidnapping, and aggravated assaults.”

(First Hardy Decl.

¶ 61). Although the assurance of confidentiality cannot be inferred whenever an individual

provides information during a criminal investigation, “[m]ore narrowly defined circumstances . .

. can provide a basis for inferring confidentiality. For example, when circumstances such as the

nature of the crime investigated and the witness’[s] relation to it support an inference of

confidentiality, the Government is entitled to a presumption.” U.S. Dep’t of Justice v. Landano,

(1993).

The Court concludes that the circumstances described in the Hardy declaration satisfy

this test. As the Supreme Court explained in U.S. Department of Justice v. Landano, “[m]ost

people would think that witnesses to a gang-related murder likely would be unwilling to speak to

the Bureau except on the condition of confidentiality.”

. Or, framed more generally,

“[t]he pertinent question is whether the violence and risk of retaliation that attend” the crime

about which the source gave information “warrant[s] an implied grant of confidentiality.” Mays

v. Drug Enf’t Admin.,

(D.C. Cir. 2000). Given the facts described in the

Hardy declaration, the Court is satisfied that the violence and risk of retaliation attendant to the

activities of the Colombo La Cosa Nostra Family were sufficient to infer that the sources

“cooperated with the FBI only with the expectation of confidentiality.” Dkt. 26-1 at 29.

4. Vaughn Index

Spataro also contests the Department’s failure to provide a formal Vaughn index.

“Because of its unique evidentiary configuration, the typical FOIA case ‘distorts the traditional

adversary nature of our legal system’s form of dispute resolution.’” Judicial Watch, Inc. v. Food

& Drug Admin.,

(D.C. Cir. 2006) (quoting King v. U.S. Dep’t of Justice,

(D.C. Cir. 1987)). This results from the “asymmetrical distribution of knowledge” 20

created by the reality that “the agency alone possesses, reviews, discloses, and withholds the

subject matter of the request.” Id. at 146. To address this disparity, the D.C. Circuit has

consistently required agencies to “provide a relatively detailed justification, specifically

identifying the reasons why a particular exemption is relevant and correlating those claims with

the particular part of a withheld document to which they apply.” Mead Data Ctr., Inc. v. U.S.

Dep’t of Air Force,

(D.C. Cir. 1977). This justification often takes the form

of a Vaughn index, which presents information identifying the documents withheld or redacted

alongside the justifications for not disclosing the requested records. A formal Vaughn index,

however, is not always required—the D.C. Circuit has observed, “[a]s our post-Vaughn opinions

make clear, it is the function, not the form, of the index that is important.” See Keys v. U.S.

Dep’t of Justice,

(D.C. Cir. 1987) (upholding explanations given through

declarations rather than formal indices); see also Judicial Watch,

(same).

The two Hardy declarations, along with the annotations within the documents produced,

are sufficient to satisfy the Department’s burden as identified in Mead Data Center. The first

declaration describes the FBI’s system for coding documents to explain withholdings. Dkt. 26-1

at 13–15. Each redaction on a produced document is marked with the relevant code, and pages

withheld in their entirety are explained through a “Deleted Page Information Sheet” that gives

the Bates number of the withheld page along with the relied-upon exemption(s).3

The first

3 For example, with respect to the September 2014 production, the FBI told Spataro that fifty- four pages had been reviewed but only forty pages were produced, “indicat[ing] that 14 pages were withheld without clearly defined or stated justification.” Dkt. 24 at 4 (Am. Compl. ¶ 22). The Court notes that a Deleted Page Information Sheet was provided for that production, and that it, together with the first Hardy declaration, adequately justifies the withholding of those fourteen pages. Dkt. 24-3 at 70. Similarly, Spataro appears to have initially argued that 143 pages were withheld in full without proper justification in July 2014. Dkt. 24 at 4 (Am. Compl. ¶¶ 19–20). Although he fails to press this objection further, to the extent his later request for a Vaughn index

21

Hardy declaration, moreover, describes the codes used by the FBI, id. at 15 (First Hardy Decl.

¶ 36), and then breaks them down into subcategories that explain with additional particularity the

justifications for removing information, id. at 15–30. The statutory provisions pursuant to which

information was withheld are given, and footnotes listing the Bates numbers of the pages where

specific subcategories of information were withheld are included to explain withholdings with

greater granularity. See, e.g., id. at 16–17 (First Hardy Decl. ¶ 39 & n.11). As noted previously,

some of those justifications are unavailing, but not because of the form of the explanation

provided. The Hardy declarations and annotations on the documents released to Spataro

adequately serve the function of a Vaughn index, and thus the FBI need not produce one. See

Hodge v. FBI,

, 140–41 (D.D.C. 2011), aff’d,

(D.C. Cir. 2013)

(describing the sufficiency of a similar declaration from Hardy when combined with “coded

references within the production” like those contained in the present productions).

B. Adequacy of Search

“An agency has an obligation under FOIA to conduct an adequate search for responsive

records.” Ewell,

. The adequacy of an agency’s FOIA search “is judged

by a standard of reasonableness,” Weisberg v. U.S. Dep’t of Justice,

(D.C.

Cir. 1984), and “[a]n agency fulfills its obligations . . . 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,

(D.C. Cir. 1999) (quoting Truitt v. Dep’t of

State,

(D.C. Cir. 1990)). “In order to obtain summary judgment the agency

must show that it made a good faith effort to conduct a search for the requested records, using

renews the objection, the Court concludes that the Deleted Page Information Sheets and first Hardy declaration adequately justify the withholdings.

22

methods which can be reasonably expected to produce the information requested.” Oglesby v.

U.S. Dep’t of Army,

(D.C. Cir. 1990). “[W]hether a search is adequate is

determined by methods, not results.” Nance v. FBI,

(D.D.C. 2012).

The agency can show that it conducted an adequate search by relying on “[a] reasonably detailed

affidavit [or declaration], 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.” Valencia-Lucena,

(quoting Oglesby,

) (first alteration

in original).

The Department relies on the two Hardy declarations to explain its search methodology.

Although Spataro disputes the adequacy of only a single aspect of the FBI’s efforts—the

remediation of the flood-damaged files—the Court has nonetheless considered the overall

adequacy of the various searches that the FBI conducted over a period of twenty-two months.

Based on that review, the Court agrees that the FBI has yet to satisfy its burden for the reasons

Spataro has identified and concludes that, in all other respects, the searches that the FBI

conducted were adequate.

Spataro requested “all records pertaining to [him].” Dkt. 26-2 at 2. According to the first

Hardy declaration, the FBI initially responded by searching the general indices to its Central

Records System (“CRS”) for references to Spataro’s name and aliases categorized as a “main

entry”—that is, for records where Spataro was the designated subject of the file. Dkt. 26-1 at 7,

10–11 (First Hardy Decl. ¶¶ 18, 26, 27). After Spataro brought suit, the FBI conducted an

additional search for records categorized as a “reference entry”—that is, for records where

Spataro was merely mentioned or referenced. Id. at 7, 10–11 (First Hardy Decl. ¶¶ 18, 26, 27).

Because the CRS records sought by Spataro existed within a subset of the CRS—the Automated

23

Case Support (“ACS”) case management system—the FBI conducted these searches through the

Universal Index (“UNI”) to ACS, “the automated index of the CRS [that] provides all offices of

the FBI a centralized, electronic means of indexing pertinent investigative information to FBI

files for future retrieval via index search.” Id. at 8, 10 (First Hardy Decl. ¶¶ 21, 26–27). Hardy

attests that “any responsive information would be located” through this search methodology

given the time period during which the records sought by Spataro were created.4 Id. at 10 (First

Hardy Decl. ¶ 27). Having reviewed both Hardy declarations, the Court has no reason to doubt

Hardy’s assessment that the queries that he described identified “all files likely to contain

responsive records.” Valencia-Lucena,

(quoting Oglesby,

). The

Court, accordingly, concludes that the FBI’s efforts up to the point of identifying potentially

responsive records were reasonable.

The crux of the dispute, however, turns on the tension between the FBI’s assertion “that

there is no further non-exempt information that can be reasonably segregated and released

without revealing exempt information,” Dkt. 26-1 at 32 (First Hardy Decl. ¶ 67), and its

acknowledgement that “[t]here remain certain cross-reference files that might contain responsive

records [that] the FBI has tried to secure from a facility that was damaged by Hurricane Sandy.”

Dkt. 33 at 2–3. According to the second Hardy declaration, there are thirteen of these

unreviewed, flood-damaged files: the eleven that the FBI originally identified, Dkt. 33-1 at 2

(Second Hardy Decl. ¶ 5), and the two additional files that it identified in the course of its search

for the missing New York Field Office files, id. at 5 (Second Hardy Decl. ¶ 8). These files are

4 Hardy further explains that “the UNI application of ACS also accomplished the task of searching the [Electronic Surveillance (“ELSUR”)] indices for any responsive records because “although ELSUR has a different identity from the CRS as a Privacy Act System of Records, the functional task of indexing and retrieving information from both ELSUR and the CRS is accomplished via the UNI application.” Dkt. 26-1 at 11 (First Hardy Decl. ¶ 29).

24

still “awaiting remediation” to address water damage. Dkt. 33 at 2–3. As a result, “they are

currently not available” to review, and they “may never be available.” Id. at 3. Because “these

documents cannot be viewed,” the Department contends “it cannot be determined whether those

records are truly responsive” and concludes the search need not continue. Dkt. 30 at 1–2.

The Department has drawn the wrong conclusion from the fact that the files are still

“awaiting remediation.” If the FBI reasonably concludes, after the remediation effort is

complete, that the files are so severely damaged that they are inaccessible, so be it; the FBI will

have made all reasonable efforts, and it cannot be faulted for failing to release records that were,

in effect, destroyed. But, on the other hand, if the remediation process yields records that are

both responsive to Spataro’s request and non-exempt under FOIA, the FBI should release those

records. The fact that the process has been a prolonged one, and the fact that the FBI does not

yet know whether it will bear fruit, does not permit the Court to conclude that the FBI has

reasonably exhausted its efforts to locate responsive records.

Finally, the Court notes that an “undue burden” may excuse a failure to search in rare

cases. Valencia-Lucena,

. The FBI, however, has not identified such a burden

and, instead, relies only on the fact that the files have not yet been remediated. The evidence

offered by the FBI in describing that process, moreover, cuts against the conclusion that any

burden is excessive. Hardy reports that a “contract has been awarded to start the remediation

process for the records stored [at] th[e] facility” at issue, and he gives no indication that progress

has not continued throughout this litigation. Dkt. 33-1 at 2 (Second Hardy Decl. ¶ 5).

The Court will, accordingly, deny summary judgment as to records that might exist in

the thirteen damaged files and will direct that the Department file periodic status reports updating

the Court and Spataro regarding the ongoing remediation process. Once that process is complete

25

in relevant respects, the Court will permit the Department, if appropriate, to file a renewed

motion for summary judgment.

CONCLUSION

The Court will DENY the Department’s motion to the extent it relies on Exemption 3 to

withhold information produced prior to an application under Title III that was not part of the

application itself, or uses Exemption 7(D) to protect sources who received express assurances of

confidentiality, and to the extent the Department has yet to complete the remediation of the

thirteen flood-damaged files, and will GRANT the Department’s motion in all other respects.

The Department may renew its motion for summary judgment with respect to Exemptions 3 and

7(D) but, if it does so, it shall submit the additional evidence described above. The Department

may also renew its motion for summary judgment with respect to records that might be found in

the flood-damaged files after the remediation process is completed in relevant respects.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: September 29, 2017

26