UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) KING & SPALDING LLP, ) ) Plaintiff, ) ) v. ) Case No. 16-cv-01616 (APM) ) U.S. DEPARTMENT OF HEALTH AND ) HUMAN SERVICES, et al., ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

This case concerns three Freedom of Information Act (“FOIA”) requests submitted by

Plaintiff King & Spalding LLP to Defendants U.S. Department of Health and Human Services

(“HHS”) and U.S. Department of Justice (“DOJ”) (collectively “Defendants”). The court already

has ruled on one round of summary judgment motions and, at this stage in the litigation, the only

remaining issues pertain to the FOIA requests directed to DOJ. Specifically, Plaintiff challenges

DOJ’s search for responsive records, as well as its withholding of certain documents under

Exemptions 6, 7(C), and 7(D).

Before the court are the parties’ renewed cross-motions for summary judgment. Upon

review of the parties’ briefs and the present record, the court grants in part and denies in part

Defendants’ Renewed Motion for Summary Judgment and Plaintiff’s Renewed Cross-Motion for

Summary Judgment. II. BACKGROUND

A. Plaintiff’s FOIA Requests

In 2012, the United States Attorney’s Office for the District of Columbia (“USAO-DC”)

initiated a criminal and civil investigation of Abiomed, Inc., a medical device company. See Pl.’s

Cross-Mot. for Summ. J., ECF No. 21 [hereinafter Pl.’s Cross-Mot.], Pl.’s Statement of

Undisputed Material Facts [hereinafter Pl.’s Stmt.], ¶¶ 36–37. The investigation centered on

marketing and labeling practices for a particular medical device, Impella 2.5, and ended three

years later without any enforcement action. See id. The investigation may have commenced when

an anonymous source, acting through a private lawyer, disclosed records pertaining to Abiomed

to the USAO-DC. See Pl.’s Cross-Mot. at 17 1; cf. Defs.’ Mot. for Summ. J., ECF No. 20

[hereinafter Defs.’ Mot.], Decl. of Tricia Francis, ECF No. 20-2 [hereinafter Francis Decl.], ¶¶ 13–

15, 18; Defs.’ Combined Opp’n to Cross-Mot. & Reply in Supp. of Mot. for Summ. J., ECF No.

25 [hereinafter Defs.’ Initial Reply], Second Decl. of Tricia Francis, ECF No. 25-2 [hereinafter

Second Francis Decl.], Corrected & Suppl. Vaughn Index for EOUSA, ECF No. 25-2, at 17–26

[hereinafter EOUSA Vaughn Index]. Abiomed suspects that one of its competitors, Maquet, is the

unnamed source. See Pl.’s Cross-Mot. at 32–33.

After the investigation closed, Abiomed sought to learn about how it started. On April 14,

2016, counsel for Abiomed, Plaintiff King & Spalding LLP, filed three separate FOIA requests

with HHS and two subcomponents of DOJ: the Civil Division and the Executive Office for United

States Attorneys (“EOUSA”). See Compl., ECF No. 1, ¶¶ 9–11; Defs.’ Mot., Defs.’ Statement of

Material Facts Not in Genuine Dispute [hereinafter Defs.’ Stmt.], ¶ 1; Pl.’s Stmt. ¶ 1. In each

1 Unless otherwise noted, citations to the parties’ pleadings, and any exhibits thereto, are to the page numbers electronically generated by CM/ECF.

2 request, Plaintiff sought documents concerning Abiomed. See generally Defs.’ Stmt. ¶¶ 2, 10, 14;

Pl.’s Stmt. ¶¶ 2, 10, 14. Plaintiff asked for “[a]ll documents between January 1, 2012 and October

31, 2012, provided to any [federal agency] from any individual, corporation, partnership, or other

private party other than Abiomed, Inc.” that “concern[ed], discuss[ed], or refer[red] to Abiomed”

or “related . . . to the issuance of a Health Insurance Portability and Accountability Act subpoena

issued by the [USAO-DC] to Abiomed.” Defs.’ Stmt. ¶¶ 10, 14; see Pl.’s Stmt. ¶¶ 10, 14. 2

As discussed, Plaintiff no longer challenges the response it received from HHS; the only

outstanding issues in this matter pertain to the FOIA requests directed to the DOJ Civil Division

and the EOUSA. See Joint Status Report, ECF No. 29 [hereinafter JSR], ¶ 3.

1. Civil Division Request

The Civil Division responded to Plaintiff’s FOIA request by letter dated June 17, 2016.

See Defs.’ Stmt. ¶ 11; Pl.’s Stmt. ¶ 11. The letter explained that the Civil Division had located 49

pages of potentially responsive documents and had referred those documents to the EOUSA for

direct response, but that a portion of the documents were protected from disclosure by court seal.

Defs.’ Stmt. ¶ 11; Pl.’s Stmt. ¶ 11. The letter also advised Plaintiff that it could administratively

appeal the Civil Division’s response within 60 days. Defs.’ Stmt. ¶ 12; Pl.’s Stmt. ¶ 12.

Plaintiff took no action in response to the June 17, 2016, letter that it received from the

Civil Division. Defs.’ Stmt. ¶ 13; Pl.’s Stmt. ¶ 13. According to Plaintiff, it could not have

“appealed” the letter because the letter “did not state any determination that the Civil Division was

2 The requests directed to DOJ for documents concerning, discussing, or referring to Abiomed included any documents provided to the Civil Division or the USAO-DC by another federal agency or component or office of DOJ, where that agency, component, or office initially obtained or received the documents from the anonymous source. See Defs.’ Stmt. ¶¶ 10, 14; Pl.’s Stmt. ¶¶ 10, 14.

3 not complying with the FOIA request or any reasons for a decision not to comply” and therefore

did not constitute a “final response” from the agency. See Pl.’s Stmt. ¶ 13.

On December 23, 2016, from the records it received from the Civil Division, EOUSA

released 27 pages in full and withheld 16 pages in full. See Defs.’ Stmt. ¶ 16; Pl.’s Stmt. ¶¶ 16,

35. According to Defendants, the 16 pages withheld in full are duplicates of documents that

EOUSA withheld in full in response to the FOIA request that Plaintiff submitted directly to

EOUSA. Defs.’ Stmt. ¶ 16; cf. Francis Decl. ¶ 11; Francis Decl., Attach. E. Thus, EOUSA

withheld those pages on identical grounds as those discussed below. See Francis Decl. ¶ 11.

2. EOUSA Request

Simultaneous with the release of the Civil Division’s records, EOUSA responded to the

FOIA request directed to it, releasing 344 pages in full and withholding 51 pages in full pursuant

to FOIA Exemptions 6, 7(C), and 7(D). Defs.’ Stmt. ¶ 15; see Pl.’s Stmt. ¶ 15. 3 Thus, all told,

EOUSA withheld in full 67 pages of responsive material (51 pages responsive to the EOUSA

request and 16 pages responsive to the Civil Division request). See Francis Decl., Attachs. D–E.

The undisclosed information generally falls into two categories: “(1) the names of government

personnel, the name of an attorney representing the unnamed source and the names of third parties

who appear in the documents provided by the unnamed source under Exemption[s] [6 and] 7(C),

and (2) certain material that could reveal the identity of the Government’s unnamed source under

Exemption 7(D).” See King & Spalding, LLP v. U.S. Dep’t of Health & Human Servs., 270

3 In its December 23, 2016, letter, EOUSA stated that it was also withholding the information pursuant to Exemption 5. See Defs.’ Stmt. ¶ 15. EOUSA no longer relies on that exemption, however, because it contends that the same information is protected from disclosure under Exemptions 6 and 7. See id. at n.1.

(D.D.C. 2017) (cleaned up); see also Defs.’ Stmt. ¶¶ 15–16; Pl.’s Stmt. ¶¶ 15–

16.

On April 5, 2017, after the parties filed their initial cross-motions for summary judgment,

EOUSA released four additional documents consisting of email communications, which the

agency located after conducting a supplemental search in March 2017. See Defs.’ Initial Reply at

7, 20; Second Francis Decl. ¶ 3; EOUSA Vaughn Index at 23–26 (documents 13–16). As part of

this supplemental release, EOUSA released 46 pages in full and 33 pages in part, withholding any

information that fell within the two aforementioned categories pursuant to Exemptions 6, 7(C),

and 7(D). See Second Francis Decl., April 5, 2017 EOUSA Letter, ECF No. 25-2, at 9–11; EOUSA

Vaughn Index at 23–26. 4 Plaintiff does not appear to challenge any of these redactions. See Pl.’s

Reply in Supp. of Cross-Mot. for Summ. J., ECF No. 27 [hereinafter Pl.’s Initial Reply], at 5; see

also Pl.’s Renewed Cross-Mot., ECF No. 33 [hereinafter Pl.’s Renewed Cross-Mot.], at 7 (seeking

court order compelling Defendants to produce only those 67 pages of responsive information

previously withheld in full).

Separately, as part of the supplemental release, EOUSA also invoked Exemptions 4 and 5

to withhold certain information from several attachments to one of the four produced emails. See

Defs.’ Initial Reply at 21 (noting the withholding of attachments to an email labeled document 13,

which included the U.S. Food and Drug Administration’s (“FDA”) internal draft minutes of a

meeting between Abiomed and FDA’s Office of Compliance and proposed edits to those minutes,

4 Specifically, the redacted information included: the names and identifying information of DOJ attorneys, a criminal investigator for the U.S. Food and Drug Administration (“FDA”), the name of counsel for the unnamed source, and passcode information for a telephonic conference. See Defs.’ Initial Reply at 20; see also Second Francis Decl. ¶¶ 3– 11; Second Francis Decl., Decl. of Sarah Kotler, ECF No. 25-2, at 12–16 [hereinafter Kotler Decl.], ¶ 11; EOUSA Vaughn Index at 23–26. Additionally, the FDA identified Exemption 7(F) as a separate basis to withhold the name of its criminal investigator. Kotler Decl. ¶ 11. That exemption is not listed in the EOUSA Vaughn Index, however, and Defendants do not appear to rely on that exemption in their briefing. Cf. Defs.’ Initial Reply at 20 n.7 (stating only that Exemption 7(F) was identified as an additional basis for withholding the name of the FDA investigator).

5 as well as an inspection report of Abiomed); see also Second Francis Decl. ¶ 10; Second Francis

Decl., Decl. of Sarah Kotler, ECF No. 25-2, at 12–16 [hereinafter Kotler Decl.], ¶¶ 6–9; EOUSA

Vaughn Index at 23–24 (document 13). In its first cross-motion for summary judgment, Plaintiff

explained that it did not challenge the applicability of Exemptions 4 and 5, provided that Plaintiff

was correct in its understanding that “the government is asserting Exemption 4 to protect

confidential commercial information supplied by Abiomed to the government, and Exemption 5

to protect internal notes made by government lawyers that memorialize meetings held between

Abiomed and the government.” Pl.’s Initial Reply at 17. Plaintiff reiterated this point in a Joint

Status Report filed after the court denied both sides’ initial cross-motions for summary judgment

and asked Defendants to define the scope of the material withheld. See JSR ¶ 18. Defendants did

not provide the requested clarification in their present motion for summary judgment, see Defs.’

Renewed Mot. for Summ. J., ECF No. 32, Mem. in Supp. [hereinafter Defs.’ Renewed Mot.], at

4, but Plaintiff did not press the issue further in its renewed cross-motion, see generally Pl.’s

Renewed Cross-Mot. (incorporating by reference all previous arguments raised in initial briefing

filed in support of summary judgment but failing to mention Exemptions 4 and 5). As the parties

have not fully briefed the Exemption 4 and 5 withholdings, the court does not address them here.

Instead, as directed below, the parties shall meet and confer regarding the scope of information

withheld pursuant to Exemptions 4 and 5 and clarify whether Plaintiff intends to challenge those

withholdings.

B. Procedural Background

Plaintiff brought this FOIA action on August 9, 2016, see Compl., and the parties filed

cross-motions for summary judgment on February 7, 2017, and February 28, 2017, respectively,

see Defs.’ Mot.; Pl.’s Cross-Mot. In their initial cross-motions, the parties disputed, among other

6 things: (1) Plaintiff’s exhaustion of administrative remedies with respect to the Civil Division

request, (2) the adequacy of EOUSA’s search, (3) the applicability of FOIA Exemptions 6, 7(C),

and 7(D) to the information withheld in response to both the Civil Division and EOUSA requests,

and (4) EOUSA’s segregability determination. See Defs.’ Mot. at 15–28; Pl.’s Cross-Mot. at 24–

44.

On September 6, 2017, the court denied the parties’ motions without prejudice. See

generally King & Spalding, LLP, 270 F. Supp. 3d at 47–49. In doing so, the court only addressed

a threshold question raised by the parties’ dispute over the applicability of Exemptions 7(C) and

7(D): whether the source of the withheld records is an entity or an individual. See

The court

observed that, as to Exemption 7(C), if the source is an entity, “then the materials the entity

supplied [could not] be withheld . . . based solely on the company’s interest in nondisclosure,”

because “the protection of personal privacy under Exemption 7(C) does not extend to

corporations.”

(internal quotation marks omitted). Similarly, the court noted that the

identity of the source impacted the Exemption 7(D) calculus, which requires the Government “to

present probative evidence that the source provided information . . . under either an express or

implied assurance that its identity would remain confidential,” because an implied assurance of

confidentiality may be more difficult to establish where the source is entity. See

at 48–49

(internal quotation marks omitted). Accordingly, the court denied the parties’ initial cross-motions

for summary judgment without prejudice, allowing Defendants to submit additional information

concerning the source’s identity.

On September 22, 2017, Defendants advised the court that they had no more information

to offer about the identity of the confidential source. See generally JSR. Defendants reported that,

“[b]ecause the source was not identified by the attorney who provided the material on the source’s

7 behalf, EOUSA does not know whether the source was an entity or an individual.” See id. ¶ 5.

Nevertheless, Defendants indicated that they intended to renew their motion for summary

judgment with respect to their withholdings under Exemptions 6, 7(C), and 7(D), subject to one

exception discussed below. See id. ¶¶ 7–9.

The parties renewed their cross-motions for summary judgment on November 2, 2017, and

November 17, 2017, respectively. See generally Defs.’ Renewed Mot.; Pl.’s Renewed Cross-Mot.

In their renewed motions, both parties incorporate their previous arguments with respect to

segregability, adequacy of the search, and exhaustion. See Defs.’ Renewed Mot. at 4; Pl.’s

Renewed Cross-Mot. at 19–21. The parties also advance similar arguments concerning the

applicability of Exemptions 6, 7(C), and 7(D). See Defs.’ Renewed Mot. at 5–15; Pl.’s Renewed

Cross-Mot. at 9–19. Defendants qualify their earlier position in one respect, however. Because

EOUSA does not know whether the source was an entity or an individual—and, correspondingly,

does not know whether the source has a legally cognizable privacy interest—Defendants no longer

rely on Exemptions 6 and 7(C) as independent bases to justify the complete withholding of records

to protect the source’s identity. See Defs.’ Renewed Mot. at 13. But Defendants do continue to

rely on Exemptions 6 and 7(C) to withhold the names and other identifying information of

government personnel and third parties, including the private attorney who communicated with

the Government on the source’s behalf. See id. at 13–15.

Plaintiff, for its part, contends that Defendants cannot meet their burden to justify

application of Exemption 7(D) in this case, largely for the same reasons stated in Plaintiff’s initial

motion for summary judgment. Cf. Pl.’s Renewed Cross-Mot. at 7–8, 10–18. Plaintiff also takes

issue with Defendants’ continued reliance on Exemptions 6 and 7(C) to withhold the name of the

private attorney who represented the source, as well as the name of his or her law firm. See id. at

8 18–19. Plaintiff is silent, however, as to Defendants’ continued reliance on those exemptions to

withhold the names of government personnel and third parties whose names may appear in the

responsive records. See id.; Pl.’s Reply in Supp. of Renewed Cross-Mot. for Summ. J., ECF No.

37 [hereinafter Pl.’s Reply], at 9–10; see also Pl.’s Cross-Mot. at 24–33 (failing to address

Defendants’ explanation for withholding the names and identifying information of these

individuals in initial round of summary judgment briefing).

The parties’ renewed cross-motions for summary judgment are now ripe for consideration.

III. LEGAL STANDARD

“Designed to facilitate public access to Government documents, [FOIA] requires federal

agencies to disclose information to the public upon reasonable request unless the records at issue

fall within specifically delineated exemptions.” Reporters Comm. for Freedom of Press v. FBI,

(D.C. Cir. 2017) (cleaned up). To prevail in a FOIA action, an agency must

demonstrate that three requirements are met. See Sea Shepherd Conservation Soc’y v. IRS (“Sea

Shepherd I”),

, 89–90 (D.D.C. 2015). First, the agency must “‘demonstrate

the . . . adequacy of the search’ for relevant documents.” Cable News Network, Inc. v. FBI,

(D.D.C. 2018) (alteration in original) (quoting Perry v. Block,

(D.C. Cir. 1982)). “Second, it must show that the withheld material ‘falls within one of nine

statutory exemptions.’”

(quoting People for the Ethical Treatment of Animals v. Nat’l Institutes

of Health,

(D.C. Cir. 2014)). Finally, “[e]ven when an exemption applies, the

agency is obligated to disclose ‘[a]ny reasonably segregable portion of a record’ after removing

the exempt material.” Bartko v. U.S. Dep’t of Justice,

(D.C. Cir. 2018) (second

alteration in original) (quoting

(b)).

9 Most FOIA cases are appropriately resolved on motions for summary judgment. Brayton

v. Office of the U.S. Trade Representative,

(D.C. Cir. 2011). A court must grant

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

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is

“genuine” only if a reasonable fact-finder could find for the nonmoving party, and a fact is

“material” only if it is capable of affecting the outcome of the litigation. Anderson v. Liberty

Lobby, Inc.,

(1986).

“Unlike the review of other agency action that must be upheld if supported by substantial

evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to

sustain its action’ and directs the district courts to ‘determine the matter de novo.’” U.S. Dep’t of

Justice v. Reporters Comm. for Freedom of Press,

(1989) (quoting

(a)(4)(B)). “The agency may carry that burden by submitting affidavits that ‘describe the

justification for nondisclosure with reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.’” Citizens for Responsibility & Ethics

in Wash. v. U.S. Dep’t of Justice (“CREW”),

(D.C. Cir. 2014) (quoting

Larson v. Dep’t of State,

(D.C. Cir. 2009)); see also SafeCard Servs., Inc. v.

SEC,

(D.C. Cir. 1991) (imposing similar burden on agency to establish

adequacy of search and explaining that agency affidavits must be “relatively detailed and non-

conclusory” and “submitted in good faith” (internal quotation marks omitted)).

IV. DISCUSSION

The parties’ renewed cross-motions for summary judgment present four issues: (1) whether

EOUSA properly withheld responsive records pursuant to FOIA Exemptions 6, 7(C), and 7(D);

10 (2) whether EOUSA adequately justified its efforts to segregate and release all non-exempt

records; (3) whether Plaintiff was required to exhaust its administrative remedies with respect to

the request directed to the DOJ Civil Division; and (4) whether EOUSA conducted an adequate

search for responsive records. The court addresses each of these issues in turn.

A. FOIA Exemptions

Because Defendants invoke Exemption 7(D) to withhold in full the 67 pages of responsive

information that Plaintiff seeks, the court begins its analysis with that exemption before addressing

whether Defendants may rely on Exemptions 6 and 7(C) to withhold the identity of the lawyer and

law firm that represented the source.

1. Exemption 7(D)

The 67 pages of responsive information withheld in full by EOUSA “were provided to the

[USAO-DC] by a private attorney who represented an unidentified source in connection with an

investigation by that Office into alleged criminal conduct by Abiomed.” Defs.’ Renewed Mot. at

6 (citing Francis Decl. ¶ 18); accord Second Francis Decl. ¶¶ 2, 9. EOUSA contends that this

information is protected from disclosure under Exemption 7(D) because its release “could

reasonably be [expected] to disclose the identity of the [unidentified] source, who provided

material on a confidential basis.” EOUSA Vaughn Index at 17–23 (documents 1–12); accord

Francis Decl. ¶ 19.

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

enforcement purposes, but only to the extent that the production of such law enforcement records

or information . . . could reasonably be expected to disclose the identity of a confidential source,”

and, “in the case of a record or information compiled by criminal law enforcement authority in the

course of a criminal investigation . . . information furnished by [the] source.” 5 U.S.C.

11 § 552(b)(7)(D). There is no dispute that the documents at issue here were “compiled for law

enforcement purposes.” See Francis Decl. ¶ 14 (“All information at issue in this case was compiled

for law enforcement purposes in order to investigate allegations of criminal conduct by

Abiomed.”); cf. Pl.’s Renewed Cross-Mot. at 10. Instead, the parties contest whether the

anonymous source qualifies as a “confidential source” within the meaning of Exemption 7(D)—

that is, whether the source provided the information in question “with an understanding that the

communication would remain confidential,” U.S. Dep’t of Justice v. Landano,

(1993). See Defs.’ Renewed Mot. at 5–11; Pl.’s Renewed Cross-Mot. at 10–15.

“A source counts as confidential ‘if the source provided information under an express

assurance of confidentiality or in circumstances from which such assurance could reasonably be

inferred.’” Labow v. U.S. Dep’t of Justice,

(D.C. Cir. 2016) (quoting Williams

v. FBI,

(D.C. Cir. 1995)); accord Landano,

. “[I]t is ‘not

enough for the agency to claim that all sources providing information in the course of a criminal

investigation do so on a confidential basis.’” Borda v. U.S. Dep’t of Justice,

(D.D.C. 2017) (quoting Labow,

). Rather, the agency must “either ‘present

probative evidence that the source did in fact receive an express grant of confidentiality,’ or ‘point

to more narrowly defined circumstances that support the inference of confidentiality.’” CREW,

(citations and alteration omitted) (first quoting Campbell v. U.S. Dep’t of Justice,

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

(D.C. Cir. 2011)). “The agency invoking Exemption 7(D) bears the burden of ‘showing that the

12 source is a confidential one.’” Sea Shepherd I,

(quoting CREW,

).

In this case, Defendants do not contend that the anonymous source furnished the

information based on an express assurance of confidentiality. Rather, they maintain that the source

did so under “more narrowly defined circumstances” that support an implied assurance of

confidentiality. Defs.’ Mot. at 26; Defs.’ Renewed Mot. at 5–11; see Landano,

.

Following Landano, the D.C. Circuit has identified four factors, originating in the case of Roth v.

U.S. Department of Justice, that courts should consider when deciding whether a source received

an implied assurance of confidentiality: “[1] the character of the crime at issue, [2] the source’s

relation to the crime, [3] whether the source received payment, and [4] whether the source has an

ongoing relationship with the law enforcement agency and typically communicates with the

agency only at locations and under conditions which assure the contact will not be noticed.”

Labow,

(quoting Roth,

). No single factor is dispositive. See

at 531–32.

Before turning to the individual factors, the court notes the general lack of evidence offered

by Defendants to support their invocation of Exemption 7(D)—even after the court gave

Defendants a second bite at the apple. Defendants’ declarant Tricia Francis, an Attorney Advisor

with the EOUSA, provides little context for the anonymous source’s disclosure. She does not say,

for instance, how the lawyer first contacted the USAO-DC; what the lawyer told the assigned

AUSA about his or her client; or what words passed between the lawyer and the AUSA about the

document disclosure. See generally Francis Decl.; Second Francis Decl. Nor can the court tell

much about the withheld records from the limited descriptions contained in the Vaughn Index.

The court does not know, for example, whether the records contain trade secrets, proprietary

13 information, or other sensitive data; whether the documents refer to individuals obviously

associated with the source; or whether the documents bear any kind of confidentiality markings.

See generally EOUSA Vaughn Index. Notably, Defendants did not submit any evidence or the

documents themselves for in camera consideration. Thus, in terms of details, the court is left

wanting.

In large part, Francis’s declaration contains unhelpful generalities. Francis reports that it

is her “understanding . . . that the AUSA did not know the identity of the source on whose behalf

private counsel provided information that supported the Government’s investigation of Abiomed.”

Second Francis Decl. ¶ 9 (emphasis added). She also submits that the information provided “could

reasonably reveal the identity of the source” if released, given that it “appears to be of a type

accessible to a finite group of people and/or attributable to a specific person or group of people.”

(emphasis added). Francis adds that “the fact that the source’s identity remained anonymous

supports the notion that the source wished to provide the government with information in support

of its investigation in a confidential manner.”

Francis’s statements are more notable for what they do not say, than what they do say.

Francis does not specify whether her “understanding” is based on communications with the AUSA

who received the records or some other source; explain why the records “appear[ ] to be” of a type

to which only a small group would have access; nor discuss in what other ways the release of the

information might reveal the source. Moreover, while the source’s anonymity and the decision to

speak through counsel bear some weight, “anonymity primarily shows that a source wants to

remain confidential rather than that there was any assurance that the source would be treated as

confidential.” Ortiz v. U.S. Dep’t of Health & Human Servs.,

(2d Cir. 1995); see

also Sea Shepherd I,

(rejecting confidential-source treatment based merely on

14 a request for anonymity). Finally, the court is perplexed by Francis’s assertion that although “the

AUSA did not know the identity of the source,” disclosing the records still “could reasonably

reveal” the source’s identity. See Second Francis Decl. ¶ 9. If the AUSA could not decipher the

source despite the benefit of compulsory process and access to nonpublic information, then why

should the court believe that Plaintiff, who lacks those advantages, is more capable of ferreting out

the source?

In any event, the court now turns to the four Roth factors.

a. Character of the crime

The first factor—the nature of the crime investigated—“contemplates that sources likely

expect confidentiality when they report on serious or violent crimes, risking retaliation.” See

Labow,

. Thus, in some cases, “the violent nature of the crime at issue” will

“‘characteristically support[ ] an inference of confidentiality’ that a court can generically apply to

all informants.” Rosenberg v. U.S. Dep’t of Immigration & Customs Enf’t,

(D.D.C. 2014) (emphasis added) (quoting Landano,

); see, e.g., Mays v. Drug Enf’t

Admin.,

(D.C. Cir. 2000) (“[W]hatever his ‘relation to the crime,’ an

informant is at risk to the extent the criminal enterprise he exposes is of a type inclined toward

violent retaliation.”); see also Hodge v. FBI,

(D.C. Cir. 2013) (holding that the

character of the crime may support an inference of confidentiality, “particularly if the criminal

activity is of a type inclined toward violent retaliation” (internal quotation marks omitted)).

This is not such a case. Here, the unidentified source provided information that “led to a

federal criminal investigation into whether Abiomed was engaged in off-labeling marketing

practices, i.e., promoting [medical devices] for uses outside of those approved by the [FDA].”

King & Spalding, LLP, 270 F. Supp. 3d at 47; see Defs.’ Renewed Mot. at 9; Francis Decl. ¶¶ 13,

15 15; cf. Pl.’s Stmt. ¶¶ 36–44. The regulatory nature of the offense for which Abiomed was

investigated therefore distinguishes this case from those where courts have found “the violence

and risk of retaliation that attend [a particular] type of crime [to] warrant an implied grant of

confidentiality for . . . a source.” See Mays,

; see also Rosenberg,

(listing the types of cases in which the violent nature of the crime supports an inference of

implied confidentiality, including “homicide, drug trafficking, gang-related crime, terrorism, or

government overthrow”); Hodge, 703 F.3d at 581–82 (finding implied assurance of confidentiality

given “vicious nature of the crimes” and declarant’s statement that disclosure of witness identities

could subject witnesses to “violent reprisals”); cf. Sea Shepherd Conservation Soc’y v. IRS (“Sea

Shepherd II”),

(D.D.C. 2016) (noting that while the agency’s law

enforcement function related to tax offenses, the first factor still favored implied confidentiality

where “the nature of the information provided related to other more physically threatening crimes”

and the agency provided evidence that at least one source indicated a fear of retaliation, “which

[was] unsurprising, given [the target’s] well-documented history of violence against its ideological

opponents”).

Nor does the seriousness of the offense weigh in favor of a finding of an implied assurance

of confidentiality here. While Defendants are correct that application of Exemption 7(D) “is not

limited to situations involving violent crimes,” Defs.’ Renewed Mot. at 9, the only case Defendants

cite from this jurisdiction is easily distinguishable. In that case, the plaintiff submitted FOIA

requests to various federal agencies, including the FBI, seeking records related to the raid of a

meatpacking plant and the subsequent prosecution of the plant’s manager, whom the plaintiff

represented. See Rosenberg,

. After reviewing in camera the information

withheld by the FBI pursuant to Exemption 7(D), the court concluded that the FBI had “met its

16 burden of establishing that the individuals whose identities and information [were] withheld [had]

provided information to the FBI under an implied assurance of confidentiality.”

. In so

holding, the court reasoned that while the case did not involve a violent crime that otherwise might

characteristically support an inference of confidentiality, the “severity” of the financial crimes at

issue in that case and the “close association” that certain informants had with the plant, its manager,

or the manager’s fraudulent activity supported the requisite inference.

As relevant here, the

court explained:

[A]s the FBI averred in its . . . Declaration, these informants provided information about a financial fraud perpetrated by [the plant manager] that resulted in his incarceration in federal prison for a term of twenty-seven years. While the length of the incarceration or even the potential for incarceration was unknown to the informants at the time they provided information to the FBI, [the manager’s] lengthy sentence reflects the severity of the crime about which the informants were providing information. Indeed, [the manager] was convicted of 86 counts of financial fraud and related offenses. . . . Courts have found informants to have spoken under implied assurances of confidentiality when they provided information about similarly severe non-violent financial crimes, for example, an investigation into a suspect who had committed crimes of “racketeering activity, wire fraud, money laundering, loan sharking, extortion, obstruction of justice, aiding and abetting, securities fraud, and embezzling funds from a labor organization.”

at 110–11 (citations omitted) (quoting Wolfson v. United States,

(D.D.C.

2009)). Suffice it to say, in terms of severity, the character of the alleged crimes at issue here—

involving violations of laws relating to the promotion of off-label use of a medical device—pales

in comparison to the character of the crimes at issue in Rosenberg, which involved “long term

incarceration and financial fraud,”

(alterations omitted). 5

5 Neither party offers much detail about the nature of the criminal and civil investigation initiated, and eventually dropped, by the USAO-DC, other than to say that the investigation focused on alleged off-label promotion of one of Abiomed’s medical devices. Nevertheless, the court notes that even the harshest penalties for such conduct appear to be far less severe than the potential punishment for the crimes cited in Rosenberg. Compare

(prohibiting adulteration or misbranding of devices), and

(a) (describing criminal penalties for

17 Importantly, Francis’s assessment of the risks faced by the source who provided the

withheld materials does not lead the court to a different conclusion. The Supreme Court’s

reasoning in Landano suggests that the first two factors (the nature of the crime and the source’s

relation to it) are merely a proxy for determining the potential risk of retaliation faced by the source

if her identity were disclosed. See 508 U.S. at 179–80. Thus, in analyzing the first factor, courts

also have considered any other evidence relevant to the nature of that risk. See, e.g., Labow,

(considering agency declarant’s explanation of potential risk in assessing first factor);

Sea Shepherd II,

(same); see also Hale v. U.S. Dep’t of Justice,

(10th Cir. 1996) (noting that Landano identified several factors relevant to the implied

confidentiality inquiry and that under the rationale articulated in that case, “courts may look to the

risks an informant might face were her identity disclosed, such as retaliation, reprisal or

harassment, in inferring confidentiality” (quoting Massey v. FBI,

(2d Cir. 1993)).

Here, the only such evidence offered by Defendants is Francis’s statement that Exemption

7(D) protects from disclosure the identity of and information provided by the confidential source,

because the release of such information “would endanger individual informants, likely making

them targets of harassment or other forms of reprisal.” Francis Decl. ¶ 18; Second Francis Decl.

¶ 8. But there are several problems with this statement, at least as applied to this case. First,

Francis’s prediction about the aforementioned risks is premised on pure speculation. By Francis’s

own admission, EOUSA does not know whether the source is an individual or an entity. See

Francis Decl. ¶ 18; Second Francis Decl. ¶ 9. That great unknown is, at minimum, a relevant

consideration in assessing risk to the source. See Landano,

.

violation of section 331), with

(mail fraud),

(wire fraud),

(bank fraud),

(money laundering), and

(false statements to bank).

18 Second, Francis’s risk assessment is too conclusory. See generally CREW,

(explaining that an agency affidavit generally must contain “reasonably specific detail”

to carry the agency’s burden of establishing that a claimed exemption applies). While the D.C.

Circuit “ha[s] credited the FBI’s assessment of risks faced by informants even if described in

relatively broad strokes,” Labow,

, it has only done so where inferences about those

risks “can reasonably be drawn from the type of crime committed,”

(emphasis added). Compare

(finding FBI explanation concerning risks associated with informing on anarchist groups—such

as “embarrassment, humiliation, and/or physical or mental harm” and “retaliation and threats

(including death threats)”—to be sufficient, even though it spoke to potential dangers posed by

anarchist extremists in general, because the cited risks could be reasonably inferred from nature of

crime), with Comput. Prof’ls for Soc. Responsibility v. U.S. Secret Serv.,

(D.C.

Cir. 1996) (rejecting agency’s suggestion that sources of information relating to “computer crimes”

face the same potential for harassment or retaliation as sources of information relating to gang-

related crimes where agency “offered no evidence that a fear of retaliation by hackers [was]

sufficiently widespread” to justify inference that sources of information relating to computer

crimes expected confidentiality). No such inference can be drawn here. Cf. Hodge, 703 F.3d at

581–82 (crediting agency assessment that disclosure of identities of witnesses who provided

information about FOIA requester’s involvement in murder could have “disastrous consequences”

and subject informants to “violent reprisals”); Petrucelli v. Dep’t of Justice,

(D.D.C. 2014) (holding that agency properly invoked Exemption 7(D) where declarant not

only stated that disclosure would render informants “targets of harassment or other forms of

reprisal,” as here, but also offered further details, including the fact that the source provided

19 information about a violent criminal enterprise and that the FOIA requester was convicted of a

“revenge killing” in connection with that enterprise).

Defendants attempt to provide a slightly more detailed explanation about the potential risks

of disclosure in their briefs, but the court finds that explanation equally unconvincing.

Specifically, Defendants argue that based on Plaintiff’s representations in this lawsuit, it is

reasonable to infer that Plaintiff “intends to use the information sought in [its] FOIA [requests] to

attempt to identify the anonymous source and possibly pursue that source in some fashion,”

thereby supporting the inference that “the anonymous source provided the information under

circumstances that implied an assurance of confidentiality.” Defs.’ Renewed Mot. at 10 (citing

Ortiz,

). But see Pl.’s Renewed Cross-Mot. at 14 (“[Plaintiff] has never suggested

that it plans any particular action against the unidentified source or its counsel. After all, [Plaintiff]

does not know who the source was or the actual nature of the information that was provided.”).

Defendants do not predict how Plaintiff would intend to “pursue the source,” but perhaps

Defendants intend to suggest that the threat is “possible legal action.” See Landano,

. Yet even if that were the case, under Landano, the court cannot conclude that such a risk

weighs in favor of implied confidentiality absent more information about the nature of information

provided and the source itself. See id.; cf. EPIC v. Drug Enf’t Admin.,

(D.D.C. 2016) (holding that “potential retaliation against a private company” was insufficient to

establish an implied assurance of confidentiality absent a more detailed explanation of the other

Roth factors).

Thus, the court finds that the first factor does not tip the scales in favor of a finding of

implied confidentiality here.

20 b. Source’s relation to crime

The court turns next to the second Roth factor: the source’s relationship to the crime. This

factor is relevant to the implied confidentiality analysis “because sources divulging nonpublic,

identifying information are more ‘vulnerable to retaliation.’” Labow,

(quoting

Mays,

). As discussed, EOUSA does not know the identity of the source who

provided information to the USAO-DC in support of its investigation of Abiomed. Presumably

for this reason, Francis’s declarations are silent with respect to the source’s relationship to

Abiomed or its marketing practices that were the subject of the investigation. Instead, Francis

simply states that the information provided by the source “could reasonably reveal [its]

identity . . . to Plaintiff, or others, given that the information provided appears to be of a type

accessible to a finite group of people and/or attributable to a specific person or group of people.”

Second Francis Decl. ¶ 9; see also Francis Decl. ¶ 19 (noting that Defendants only withheld

records that did not appear “on their face . . . to be publicly available or subject to wide

dissemination”).

In its most recent application of the Roth factors, the D.C. Circuit found the second factor

to weigh in favor of implied confidentiality when the informants were “in a position to have ready

access to and/or knowledge about targets and others involved” in the investigated activity and

“provided specific detailed information that [was] singular in nature.” Labow,

(emphasis added). Such information, the Labow court reasoned, was the kind that “could be traced

to a particular source” if released to the public.

In some sense, Francis’s statement that the

information appears to be accessible to a finite group of people and/or attributable to a specific

person or group of people is similar to the agency explanation offered in Labow. But absent more

facts, the court is in no position to evaluate the validity of that claim or the proximity of the source

21 to the crime. Most obviously, the court cannot make the assessment because Defendants do not

know the character of the source. If, for instance, the source is an Abiomed competitor, then that

fact might weigh against an inference of confidentiality. The opposite would hold true if the source

is an Abiomed insider.

Nor do the documents, as described in the Vaughn Index, lead to the natural inference that

they were closely held. Several of the withheld documents are identified as letters between

Abiomed and the FDA. See EOUSA Vaughn Index at 18–20 (documents 3–5). Presumably, these

letters would be publicly available under FOIA. Other records are described as “bate[s]-stamped,”

but not by the EOUSA. See id. at 20 (document 6). Bates-stamp markings suggest that these

documents may have been exchanged in civil litigation or produced to a government agency. And,

finally, two of the documents are described as a “two-page article regarding an Abiomed product,

which contains markings by an unidentified person,” id. at 21 (document 7), and a “note from a

third party to unidentified recipients,” id. (document 8). The lack of identifying information about

the author of the markings and the note means that the court cannot draw any inference at all from

these documents about the source’s proximity to the alleged unlawful activity. In short, these

records are a far cry from the type of records that courts have recognized give rise to an inference

of confidentiality by virtue of their content. Cf. Ortiz,

(finding it reasonable to

assume close relationship between target of investigation and source based on nature of allegations

and contents of an anonymous letter, which demonstrated source’s awareness of personal details

of target’s life). The court therefore finds this factor to be, at most, neutral.

c. Whether the source received payment

Moving on to the third Roth factor, the court’s analysis is easy: Given that Defendants

presented no evidence with respect to whether the unidentified source received payment in this

22 case, the third factor does not weigh in favor of a finding of implied confidentiality here. Cf.

Landano,

(“[I]t is reasonable to infer that paid informants normally expect their

cooperation with the FBI to be kept confidential.”); Labow,

(“[A]ll parties agree

that the sources did not receive payment. That fact weighs against a finding of confidentiality, but

is not itself dispositive.”).

d. Duration of relationship with law enforcement and manner of communication

That leaves the fourth Roth factor, which “concerns the duration of the source’s

relationship with law enforcement and the manner of communication.” Labow,

;

see also Roth,

(describing fourth factor as “whether the source has an ‘ongoing

relationship’ with the law enforcement agency and typically communicates with the agency ‘only

at locations and under conditions which assure the contact will not be noticed.’” (quoting Landano,

)). In this case, Defendants make no argument about the duration of the source’s

relationship with law enforcement. They appear only to rely upon the second criteria—the manner

of communication—to support an inference of confidentiality. See Defs.’ Renewed Mot. at 8–9.

Defendants contend that “[t]he fact that the source remained anonymous and provided the

information through a conduit (an attorney at a private law firm)” supports the application of

Exemption 7(D) here.

at 8 (citing Ortiz,

; and Providence Journal Co. v. U.S.

Dep’t of Army,

(1st Cir. 1992)).

As noted previously, the court agrees that the anonymous production of records does

support some inference of confidentiality. Cf. Labow,

(“Consistent and secretive

communications indicate a source’s expectation of confidentiality.” (emphasis added)). But on

this record, the utter lack of specific evidence makes that inference a relatively weak one. The

declarant, Francis, tells the court no more than that an unidentified source, acting through a private

23 lawyer, provided the documents to law enforcement. See Francis Decl. ¶ 18. The EOUSA Vaughn

Index provides a bit more color. It suggests that some communication took place by email in

February 2012. See EOUSA Vaughn Index at 22 (document 11). The next dated entries are from

May 2012 and are contained in a letter from the lawyer to an AUSA, which encloses documents,

see id. at 17 (document 1), and two additional email communications, see id. at 21–22 (documents

9–10). These limited communications, seemingly occurring over a short period of time at the start

of the investigation, do not support an “ongoing relationship” with the law enforcement agency.

Notably, there appear to be no communications in the later part of the three-year investigation.

Nor do the communications themselves give rise to a particularly strong inference of

confidentiality, as Defendants claim. True the source remained anonymous, but its lawyer did not;

instead, the lawyer chose to communicate via traditional methods of letter and email, not in a

manner suggesting a need for greater secrecy (such as an in-person meeting). Thus, the fourth

Roth factor does not tilt the scales in favor of nondisclosure.

The two primary cases on which Defendants rely—Ortiz and Providence Journal, both

involving anonymous sources—do not compel a different result. Ortiz involved an unsolicited,

anonymous letter sent to a field office of the Social Security Administration, which triggered a

criminal investigation of the plaintiff. See 70 F.3d at 733–34. After reviewing the letter in camera,

the Second Circuit concluded that the letter, even though unsolicited, was sent with an assurance

of confidentiality that reasonably could be inferred from the circumstances. Id. Specifically, the

court found it “evident from the nature of the allegations and the contents of the letter that the

author was aware of personal details of [the plaintiff’s] life.” Id. at 734. Thus, the court held:

It is reasonable to assume that knowledge of such details places the source of that information in close relationship with, or proximity to, [the plaintiff]. . . . The possibility of retaliation or harassment is reasonable and genuine in a case such as this one where serious

24 allegations are made by someone who may be quite close to the object of those allegations.

Id. Providence Journal is factually similar to Ortiz. There, the Inspector General of the Army

received four anonymous letters accusing officers of the Rhode Island National Guard of serious

misconduct punishable either by disciplinary action or court-martial under the Uniform Code of

Military Justice. See Providence Journal,

. The court found the authors of the

letters to be anonymous sources who had sent the letters in confidence, in part because of the

consequential nature of the allegations and because two of the letters contained “explicit

representations that the writers feared ‘reprisal’ or ‘retribution’ (e.g., loss of employment) in the

event their statements were disclosed.”

at 565–67.

To state the obvious, other than the anonymity of the source, this case bears little

resemblance to Ortiz or Providence Journal. As discussed, because Defendants have not identified

the source as an entity or an individual, the court cannot assess the risks that disclosure would

pose. Moreover, the court does not know enough about the documents’ contents to find that they

contain the type of intimate or closely-held information that might reveal the source. And, finally,

the fact the source used a private lawyer to convey the records means the source is likely more

sophisticated than the letter writers in Ortiz and Providence Journal and thus less likely to believe

that mere anonymity equates to confidentiality. Indeed, by using private counsel, it is fair to

assume that the source was on notice of the “boundaries of the FOIA exemptions,” Brant Constr.

Co. v. EPA,

, 1262–63 (7th Cir. 1985), and therefore capable of taking the proper

steps to ensure confidentiality, if so desired. Accordingly, Ortiz and Providence Journal do not

aid Defendants’ cause.

25 * * *

In summary, weighing the four Roth factors together, the court cannot conclude that the

unidentified source provided the information in question to the USAO-DC under an implied

assurance of confidentiality. Although the source remained anonymous and provided some

potentially nonpublic and identifying information through counsel, see Francis Decl. ¶¶ 18–19, the

lack of other information about the source, including its proximity to the alleged misconduct,

neutralizes those factors. Moreover, because the misconduct in question concerns off-label

marketing practices, not more serious or violent crimes, it is less likely that the source feared

retaliation and thus expected confidentiality, as opposed to simply wanting to remain anonymous.

Thus, under these circumstances, the court finds that Defendants have failed to justify their

invocation of Exemption 7(D) to withhold the 67 pages of responsive information in full. 6

2. Exemptions 6 and 7(C)

The court turns next to Defendants’ invocation of Exemptions 6 and 7(C) to withhold the

name of the lawyer and the law firm that represented the source. 7 Because “‘Exemption 7(C) is

6 Because the court concludes that the unidentified source does not qualify as a “confidential source” within the meaning of Exemption 7(D), the court need not address the parties’ arguments with respect to (1) whether disclosure of the information provided by the source “could reasonably be expected to” reveal the source’s identity, see Defs.’ Renewed Mot. at 9; Pl.’s Renewed Mot. at 9–10, and (2) whether disclosure of the same information is nevertheless protected under the second clause of the exemption, which protects information furnished by confidential sources if such information is compiled by criminal law enforcement authority “in the course of a criminal investigation,” see Defs.’ Renewed Mot. at 10; Pl.’s Renewed Mot. at 10–12. For the same reason, the court does not reach Defendants’ asserted separate basis for withholding information identifying the private attorney who communicated on behalf of the source under Exemption 7(D). See Defs.’ Renewed Mot. at 9 (arguing that “Exemption 7(D) also protects information identifying the agent who provided the information on behalf of the unidentified [confidential] source when the agent’s identity could be used to identify the informant” (internal quotation marks omitted)). 7 As discussed above, Plaintiff does not appear to challenge Defendants’ reliance on Exemptions 6 and 7(C) to withhold the names and other identifying information of government personnel or third parties whose names may have appeared in either the 67 pages withheld in full by EOUSA or the 33 pages released in part as part of EOUSA’s supplemental release. However, because those individuals clearly have a privacy interest in not having their names associated with a law enforcement investigation, see Bartko,

; see also Roth,

(“[W]itnesses, informants, and investigating agents have a substantial interest in ensuring that their relationship to the investigations remains secret.” (cleaned up)), Plaintiff, as the requester, bore the burden of showing how disclosure of these individuals’ names would likely advance a significant public interest, see Nat’l Archives & Records Admin. v. Favish,

(2004). For the same reasons discussed below in section IV.A.2.a., the court finds that

26 more protective of privacy than Exemption 6’ and thus establishes a lower bar for withholding

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

(D.C. Cir. 2011) (quoting U.S. Dep’t of

Defense v. FLRA,

, 496 n.6 (1994)), “the court need only consider here Defendants’

reliance on Exemption 7(C),” King & Spalding, LLP, 270 F. Supp. 3d at 48 n.2.

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

enforcement purposes, but only to the extent that the production of such law enforcement records

or information . . . could reasonably be expected to constitute an unwarranted invasion of personal

privacy.”

(b)(7)(C). There is no dispute here that the information was compiled

for law enforcement purposes; the only question is whether release of the information “could

reasonably be expected to constitute an unwarranted invasion of personal privacy.” To determine

whether the release of information constitutes an “unwarranted invasion of personal privacy,” the

court must balance “the privacy interests that would be compromised by disclosure against the

public interest in release of the requested information.” Davis v. U.S. Dep’t of Justice,

(D.C. Cir. 1992); accord ACLU,

.

a. The lawyer’s name

As to disclosure of the lawyer’s name, the balancing under Exemption 7(C) is not as

complicated as the parties make it out to be. The D.C. Circuit has long held that “‘third parties,’

‘witnesses,’ and ‘informants’ mentioned in investigatory files maintain a privacy interest ‘in

keeping secret the fact that they were subjects of a law enforcement investigation.’” Bartko,

(quoting Nation Magazine, Wash. Bureau v. U.S. Customs Serv.,

(D.C.

Cir. 1995)); see also Schrecker v. U.S. Dep’t of Justice,

(D.C. Cir. 2003)

(characterizing this privacy interest as “substantial”). For this reason, the Circuit has adopted a

Plaintiff has failed to meet that burden here. Thus, the court will grant summary judgment in favor of Defendants as to the withholding of the names and identifying information of these individuals as well.

27 “categorical 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,

(quoting SafeCard Servs.,

); accord Bartko,

; see also Prop. of

People v. U.S. Dep’t of Justice,

(D.D.C. 2018) (“[T]he D.C. Circuit has

held that any ‘names and identifying information of third parties contained in . . . investigative

files are presumptively exempt.’” (quoting CREW,

)).

Because Plaintiff has not come forward with “compelling evidence” that would confirm or

refute allegations of illegal agency activity, Plaintiff cannot overcome application of the

categorical rule in this case. Even outside the categorical rule context, when a requester suggests

wrongdoing, she “must establish more than a bare suspicion in order to obtain disclosure.” Nat’l

Archives & Records Admin. v. Favish,

(2004) (“[W]here there is a privacy

interest protected by Exemption 7(C) and the public interest being asserted is to show that

responsible officials acted negligently or otherwise improperly in the performance of their duties,

the requester must establish more than a bare suspicion in order to obtain disclosure.”). “Rather,

the requester must produce evidence that would warrant a belief by a reasonable person that the

alleged Government impropriety might have occurred.”

Courts “must insist on a meaningful

evidentiary showing,” the Supreme Court has explained, because “[a]llegations of government

misconduct are easy to allege and hard to disprove.”

(internal quotation marks omitted).

Here, Plaintiff contends that there is enough evidence to warrant a reasonable belief “that

the government disclosed confidential information about the investigation to Maquet, one of

Abiomed’s main competitors, or a closely-associated individual.” Pl.’s Initial Reply at 8. To

support this contention, Plaintiff first points to a Forbes.com article reporting that “the

28 investigation of Abiomed was ‘rumored’ on Wall Street for at least two weeks” before the USAO-

DC issued a grand jury subpoena to Abiomed on October 26, 2012. Pl.’s Cross-Mot. at 32; Pl.’s

Stmt. ¶ 40; see Pl.’s Cross-Mot., Decl. of John C. Richter, ECF No. 21-1 [hereinafter Richter

Decl.], ¶¶ 25–26; see also Richter Decl., Attach. Q (Forbes article). Because “only the government

knew what it was going to do,” Plaintiff posits, “it is not unreasonable to suspect that the

government was the source of that rumor.” Pl.’s Cross-Mot. at 32; accord Pl.’s Initial Reply at 8–

9.

Plaintiff further asserts that its suspicion that “someone in the government who knew about

the subpoena leaked information about the status of the investigation to Maquet, who then leaked

it to investors,” Pl.’s Initial Reply at 9, is corroborated by the following evidence: (1) a February

2014 meeting in which a former Maquet executive told Abiomed executives that he “personally

participated in a plan, generated by two Maquet employees, to hire an out-of-state law firm to

submit complaints against Abiomed to the [DOJ] in hopes of sparking a government

investigation,” Pl.’s Initial Reply, Ex. A, Decl. of Sean C. Flynn, ECF No. 27-1, ¶ 3; (2) an April

2014 meeting in which a Maquet marketing manager told Elliot Favus, an investment analyst, that

Maquet was voluntarily providing federal investigators with information about regulatory

violations by Abiomed, see Pl.’s Initial Reply, Ex. B., Decl. of Bryan J. Finley, ECF No. 27-2

[hereinafter Finley Decl.], ¶ 5; see also Finley Decl., Ex. B; (3) a statement by one of Maquet’s

marketing managers to Abiomed’s regional directors that Abiomed had “some big news coming”

and was in for a “big surprise” at a conference in late October 2012, just days before the USAO-

DC issued the grand jury subpoena to Abiomed, Finley Decl. ¶ 2; (4) a meeting that occurred

between a Maquet marketing manager and Favus at the same October 2012 conference, which

included a discussion of Abiomed, see

¶¶ 3–4; see also Finley Decl., Ex. A; and (5) the fact

29 that the “outstanding short position on Abiomed’s stock mysteriously increased to 395 percent

right before the subpoena” issued, Pl.’s Initial Reply at 9 (citing Richter Decl. ¶¶ 25, 27). 8

Finally, Plaintiff contends that the “abrupt and swift action taken by the [USAO-DC] after

these events further suggests the possibility of government impropriety.” Pl.’s Initial Reply at 10.

Plaintiff cites an April 2, 2014, letter from Abiomed to the U.S. Attorney’s Office for the District

of Massachusetts, copying the USAO-DC, which “raised concerns about suspected leaks of

information about the investigation, potential collusion between analysts and hedge funds who

may have been ‘front running’ Abiomed stock[,] and requested that the government open an

investigation into potential securities law violations.” Pl.’s Cross-Mot. at 32 (citing Pl.’s Stmt.

¶ 42); see also Richter Decl. ¶ 28. Although Plaintiff does not attach the letter, Plaintiff asserts

the letter also stated that Abiomed had evidence indicating that “analysts may have obtained the

information about the impending subpoenas from Maquet,” which, in turn, suggested that

“Maquet . . . may have gotten its inside information about the investigation from a government

attorney who was handling the investigation.” Richter Decl. ¶ 29. Plaintiff emphasizes that “[n]ot

long after sending the letter, on or about the middle of May 2014,” id. ¶ 30, “the lead criminal

AUSA in DC was removed from the Abiomed investigation and reassigned,” Pl.’s Cross-Mot. at

33 (citing Pl.’s Stmt. ¶ 44).

Though Plaintiff creatively weaves together a host of disparate facts to paint a portrait of

government wrongdoing, none of its evidence “warrant[s] a belief by a reasonable person that the

alleged Government impropriety might have occurred.” See Favish,

. Like the

8 In response to Defendants’ suggestion that Plaintiff might have been the source of the rumor, see Defs.’ Initial Reply at 15, Plaintiff also offered evidence to foreclose that theory, see Pl.’s Initial Reply at 10–11; see also Pl.’s Initial Reply, Ex. C, Suppl. Decl. of John C. Richter, ECF No. 27-3, ¶¶ 5–6 (stating that Plaintiff was not aware of the investigation prior to being contacting by Abiomed on October 26, 2012, the day the grand jury subpoena was served, and therefore could not have disclosed information about the investigation or the grand jury subpoena before the subpoena was issued).

30 requester’s efforts in Blackwell v. FBI, Plaintiff’s recounting of “a litany of allegedly suspicious

circumstances” lacks any substantiation and thus “fail[s] to meet the demanding Favish standard.”

(D.C. Cir. 2011). Plaintiff’s “evidence” does not directly implicate a law

enforcement official in any unlawful act. And, its circumstantial evidence is similarly lacking:

simply put, conjecture of wrongdoing is not the “meaningful evidentiary showing” that Favish

demands. See Favish,

. Absent any hard evidence substantiating its “if not the

government then who?” theory, Plaintiff cannot establish that a reasonable person would have

more than a suspicion of impropriety. As a result, “there is no ‘counterweight on the FOIA scale

for the court to balance against the cognizable privacy interest in the requested records.” Boyd v.

Criminal Div. of U.S. Dep’t of Justice,

(D.C. Cir. 2007) (quoting Favish, 541

U.S. at 174–75). Plaintiff’s challenge to Defendants’ invocation of Exemption 7(C) as to the

lawyer’s name therefore must fail.

b. The name of the law firm

That leaves the question whether Defendants also may withhold the identity of the private

law firm with which the attorney was affiliated. Defendants urge the court to answer that question

in the affirmative, claiming that “employment information” is properly withheld under Exemption

7(C) “when its disclosure would risk identifying the individual whose privacy rights are

implicated.” Defs.’ Combined Opp’n & Reply Mem., ECF No. 35, at 7. Notably, Defendants do

not contend that the law firm itself has a privacy interest. Plaintiff, on the other hand, asserts that

Defendants have “produced no evidence to support [their] assertion that the name of the law firm

would identify the individual attorney.” Pl.’s Reply at 9.

The court agrees with Plaintiff. The declarations offered by Defendants largely focus on

EOUSA’s justification for withholding certain responsive records in full to protect the identity of

31 the source. See generally Francis Decl.; Second Francis Decl. They are silent, however, on the

question whether disclosing the name of the law firm could reasonably be expected to lead to the

disclosure of the identity of the lawyer, whose privacy interests are directly at stake. If the law

firm is a sole proprietorship, for example, then the court could easily conclude that Defendants

properly withheld the name of the firm under Exemption 7(C); in that case, disclosure of the name

of the law firm would effectively disclose the identity of the lawyer. If, on the other hand, the law

firm is much larger—for example, comprised of hundreds of attorneys—then the court may be less

likely to uphold the withholding of the firm name under Exemption 7(C). The record in its present

state does not contain such information.

Accordingly, the court will allow Defendants an opportunity to supplement the Francis

Declarations with facts that support their assertion that disclosure of the law firm’s name could

reasonably be expected to constitute an unwarranted invasion of the lawyer’s personal privacy. 9

B. Segregability

Because “[t]he focus of FOIA is information, not documents, . . . an agency cannot justify

withholding an entire document simply by showing that it contains some exempt material.” Mead

Data Cent., Inc. v. U.S. Dep’t of the Air Force,

(D.C. Cir. 1977). FOIA therefore

requires that “[a]ny reasonably segregable portion of a record shall be provided to any person

requesting such record after deletion of the portions which are exempt.”

(b).

Given the court’s holding that Defendants must produce the 67 pages of responsive

information subject to the Exemption 7(C) redactions outlined above, Plaintiff’s challenge to

EOUSA’s segregability analysis as to those documents in their entirety, see Pl.’s Cross-Mot. at

9 In addition to filing a supplemental declaration, Defendants may also submit an ex parte, in camera declaration from the lawyer, indicating why disclosure of the name of his or her law firm could reasonably be expected to reveal the lawyer’s identity.

32 38–40; Pl.’s Initial Reply at 12–13, is moot. Furthermore, there is no separate segregability

analysis for the court to undertake with respect to these 67 pages because the only material

Defendants seek to redact are names and identifying information, as described above.

Finally, although Plaintiff does not challenge EOUSA’s segregability determination with

respect to the 33 partially redacted pages produced as part of the agency’s supplemental release,

cf. Pl.’s Initial Reply at 13, the court still must determine whether EOUSA has carried out its duty

to disclose reasonably segregable material, see Ctr. for Pub. Integrity v. U.S. Dep’t of Energy,

(D.D.C. 2018) (“A district court must evaluate segregability even where, as

here, the requester has not challenged it.” (citing Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007)). After reviewing the Francis Declarations, the accompanying Kotler

Declaration, and the EOUSA Vaughn Index, the court is satisfied that EOUSA has provided a

sufficiently detailed justification for its segregability determination with respect to the

supplemental release (i.e., documents 13–16). See Francis Decl. ¶¶ 14–17; Second Francis Decl.

¶¶ 10–11; Kotler Decl.; EOUSA Vaughn Index at 23–26; see also Sussman,

(“Agencies are entitled to a presumption that they complied with the obligation to disclose

reasonably segregable material.”).

C. Exhaustion of Civil Division Request

The court need not linger over the parties’ dispute regarding whether Plaintiff failed to

exhaust its administrative remedies with respect to the Civil Division request. As Plaintiff

correctly points out, this issue may prove to be “meaningless,” Pl.’s Initial Reply at 15, because

Defendants claim that of the 67 pages withheld in full by EOUSA, the 16 pages responsive to the

Civil Division request were duplicative of the other 51 pages responsive to the EOUSA request,

see Defs.’ Stmt. ¶ 15. And, there is no dispute that Plaintiff administratively exhausted its

33 remedies with respect to the EOUSA request. See Defs.’ Mot. at 17 (“EOUSA did not provide a

final response to Plaintiff prior to the filing of this lawsuit and, therefore, exhaustion is not an issue

pertaining to that distinct request.”). Plaintiff also notes, however, that Defendants may have

located and ultimately withheld additional documents responsive to the Civil Division request

“due to a perceived failure to exhaust.” Pl.’s Initial Reply at 15. Defendants have provided no

clarification on this point. See, e.g., JSR ¶ 11; see also Defs.’ Renewed Mot. at 4 (simply

incorporating previous argument that Plaintiff failed to administratively exhaust Civil Division

request). For this reason, as directed below, the parties shall clarify whether Defendants have

withheld any information in addition to the 16 pages responsive to the Civil Division request

discussed above and, if so, whether Plaintiff still intends to challenge the withholding of any

documents responsive to the Civil Division request.

D. Adequacy of Search

Finally, the court addresses Plaintiff’s challenge to the adequacy of EOUSA’s search for

responsive records. See generally Pl.’s Cross-Mot. at 41–44. To prevail in a FOIA action, an

agency must “demonstrate that it has made ‘a good faith effort to conduct a search for the requested

records, using methods which can be reasonably expected to produce the information requested.’”

Sea Shepherd I, 89 F. Supp. 3d at 89–90 (quoting Oglesby v. U.S. Dep’t of Army,

(D.C. Cir. 1990)). An agency is entitled to summary judgment “only if it ‘show[s] beyond material

doubt that it has conducted a search reasonably calculated to uncover all relevant documents.’”

Aguiar v. Drug Enf’t Admin.,

(D.C. Cir. 2017) (alteration in original) (quoting

Morley v. CIA,

(D.C. Cir. 2007)). “To meet that burden, the agency may

submit, and [the court] may rely on, ‘reasonably detailed affidavit[s], setting forth the search terms

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

34 (if such records exist) were searched.’”

(second alteration in original) (quoting DiBacco v. U.S.

Army,

(D.C. Cir. 2015)). “Agency affidavits are accorded a presumption of

good faith, which cannot be rebutted by purely speculative claims about the existence and

discoverability of other documents.” Bartko,

(internal quotation marks omitted).

Summary judgment is inappropriate, however, if “a review of the record raises substantial doubt

as to the search’s adequacy, particularly in view of well[-]defined requests and positive indications

of overlooked materials.” Reporters Comm. for Freedom of Press,

(internal

quotation marks omitted).

Here, Defendants offer the declaration of Theresa Jones, the acting FOIA coordinator for

USAO-DC’s Civil Division, to describe the search EOUSA undertook to locate records responsive

to Plaintiff’s FOIA request. See generally Defs.’ Mot., Decl. of Theresa D. Jones, ECF No. 20-3

[hereinafter Jones Decl.]; Defs.’ Initial Reply, Suppl. Decl. of Theresa D. Jones, ECF No. 25-3

[Suppl. Jones Decl.]. According to Jones, Marvin Bryan, Jr., the FOIA Coordinator for the USAO-

DC at the time, began by performing a search of the “Master Index”—the U.S. Attorney’s Office

computerized docketing/case management system—using the search term “Abiomed, Inc.” and a

date range of January 1, 2012, to October 31, 2012. Jones Decl. ¶¶ 5, 7. Although this search

produced no responsive records, id. ¶ 7, Bryan also sent a global email to “all USAO[-]DC Civil

Employees in search of responsive records” and “subsequently contacted another AUSA in the

Criminal Division after being advised that this AUSA might have potentially responsive records,”

id. ¶ 8. In response to the email, Bryan received two Abiomed-related files from two AUSAs. Id.

¶ 9; see Suppl. Jones Decl. ¶ 4. For ease of reference, the court refers to these files as Matter One

and Matter Two.

35 Records relating to Matter One were deemed unresponsive, as they post-dated the

applicable date range listed in Plaintiff’s FOIA request. Jones Decl. ¶ 9; see also Suppl. Jones

Decl. ¶ 4 (noting that Jones reviewed the paper file associated with one of the two Abiomed-related

matters and determined that it fell outside of the relevant date range). Notwithstanding the

unresponsiveness of these records, Jones directed the USAO-DC’s Information Technology Unit

(“IT”) to perform an additional search of the electronic files of the only AUSA identified as having

been assigned to Matter One. See Suppl. Jones Decl. ¶ 4; Jones Decl. ¶ 13. Although the AUSA

no longer worked in the office at the time of the search, IT was able to search a copy of the AUSA’s

email mailbox “as it existed on the day IT removed it from the network.” Suppl. Jones Decl. ¶ 4;

see also Jones Decl. ¶ 13 (noting that USAO-DC’s “email archive platform contains three years’

worth of data for employees, and IT removes an employee’s network account from the system

after an employee resigns”). Jones asked IT to perform a search using the terms “Abiomed, Inc.,”

“Food & Drug Administration,” “Department of Justice Consumer Protection Branch,” and the

name of the source’s lawyer’s law firm—all subject to the timeframe of January 1, 2012, to

October 31, 2012. Jones Decl. ¶ 14. After running a search for the applicable date range using

the abovementioned search terms and variants thereof, IT located 420 documents. Id. ¶ 15. Jones’s

review of those documents, however, yielded no responsive records. Id. ¶ 17.

The file concerning Matter Two was found in the Fraud and Public Corruption Section

(“FPS”) of the USAO-DC’s Criminal Division. Jones Decl. ¶ 10. An AUSA in FPS, who had

been assigned to Matter Two more recently, i.e., outside the relevant time period, provided the file

to Jones for review, and that file ultimately was determined to have some documents responsive

to Plaintiff’s FOIA Request. See Jones Decl. ¶ 10; Suppl. Jones Decl. ¶ 5. This AUSA further

assisted in Jones’s search effort by (1) facilitating access to FPS’s electronic files stored on a

36 secured network drive, which Jones searched for responsive records related to Abiomed, Inc., and

(2) searching a “.pst folder” that the AUSA maintained in connection with his work on the

Abiomed matter for any emails that fell within the applicable date range. See Jones Decl. ¶¶ 11–

12; Suppl. Jones Decl. ¶ 5. Jones’s search of FPS’s electronic files yielded no responsive records.

Jones Decl. ¶ 11. It is unclear whether the AUSA’s search of his .pst folder yielded any responsive

records. See id. ¶ 12 (stating only that the AUSA from FPS “provided the result of [his] review”

to Jones and not specifying whether this search effort, as opposed to a separate search effort also

described, yielded responsive records).

In addition to the above-described efforts, Jones also determined that two other AUSAs

were assigned to Matter Two during the relevant time period. Suppl. Jones Decl. ¶ 5. Only one

of those AUSAs still worked in the U.S. Attorney’s Office as of Jones’s search; the other left the

office in May 2014. Id. ¶ 6. “The AUSA who was still in the office searched his [own] files,

including emails, for responsive documents and provided potentially responsive documents to

[Jones].” Id. Jones located some responsive documents as a result of that review. See id.; Jones

Decl. ¶ 12.

Jones did not at first conduct a search of the emails of the AUSA who left the office in May

2014 due to “a misunderstanding as to whether that [AUSA’s] electronic files could still be

accessed.” Suppl. Jones Decl. ¶ 6. However, after further inquiry, Jones learned that a

convenience copy of the AUSA’s email mailbox remained available, “as it [existed] the day IT

removed the AUSA’s account from the network.” Id. ¶ 7; see id. ¶ 6; see also Jones Decl. ¶ 13

(explaining that IT removes an employee’s network account from the system after an employee

resigns). Jones then obtained a convenience copy from IT and personally searched the AUSA’s

37 mailbox for responsive documents. Suppl. Jones Decl. ¶ 7. Jones located four responsive

documents as a result of this supplemental search. Id.

To summarize, as to email searches, “the identified AUSAs who were still in the office

searched their own email for responsive documents and, for AUSAs who no longer were in the

office, that email was searched as it existed at the time those AUSAs left the office.” Id. ¶ 8. Jones

explains that “[t]he only other potential source for email would be email retained by EOUSA in

its USAMail archive.” Id. ¶ 9. That archive “is automatically purged on a three-year sliding

timeline, meaning that email only can be accessed dated back to three years from the date of the

search.” Id. Because the searches were performed in 2016 and 2017, respectively, the relevant

time period in Plaintiff’s FOIA request (January 1, 2012, to October 31, 2012) fell outside that

three-year window. Id. Thus, the USAMail archive “was not searched because it would not

contain responsive documents.” Id. Furthermore, according to Jones, there are not any backup

tapes or other archives where responsive records might be housed. See id. (noting that the only

backup tapes used within USAMail are for disaster recovery, which retain only the previous seven

days of exchange database data); id. (“EOUSA does not maintain archived backup tapes.”).

Plaintiff’s challenge to the adequacy of EOUSA’s search focuses on the search of emails.

In Plaintiff’s view, Jones’s description of that search is deficient in three respects. First, Plaintiff

contends that although Jones searched a convenience copy of the mailbox of the former AUSA

who was previously assigned to Matter Two (i.e., the matter falling within the relevant time period)

as part of her supplemental search, Jones’s supplemental declaration does not identify the search

terms used to search that AUSA’s mailbox or explain how the search was conducted. See Pl.’s

Initial Reply at 15–16. While Jones describes in some detail the search conducted by IT of the

other former AUSA’s email—the one assigned to Matter One—Plaintiff submits that she does not

38 do the same for the email of the departed AUSA assigned to Matter Two. See id. at 16. Second,

Plaintiff asserts that Jones’s explanation with respect to the two current AUSAs assigned to Matter

Two who searched their own email mailboxes suffers from the same deficiencies—namely, the

failure to provide any information about the search terms or methods the AUSAs used. Id. Third,

and relatedly, Plaintiff complains that Jones does not sufficiently describe the scope of the search

conducted by the two AUSAs who searched their own emails. See id. at 16–17. For example,

Plaintiff points out that while Jones states that the current AUSA who worked on Matter Two

during the relevant time period searched his files, “including emails,” Jones does not explain

whether this search included the AUSA’s current inbox and all relevant folders. Id. at 17.

Similarly, Plaintiff notes that while Jones clarifies in her supplemental declaration that the AUSA

in FPS who was assigned to Matter Two more recently searched a “.pst folder” as opposed to an

“archive folder,” Jones still “does not state whether that AUSA searched any email outside this

folder and, if not, whether those other places were likely to contain responsive information.” Id.

At least with respect to the methods used and the locations searched, the court is satisfied

that Jones has provided a sufficiently detailed description of the agency’s search efforts. The court,

however, agrees with Plaintiff that Jones’s declarations are lacking insofar as they do not include

the search terms used to search three of the four AUSAs’ email files. For Defendants to carry their

burden of demonstrating the adequacy of the search, the declarations they rely upon “must set forth

‘the search terms’ used in the search, not some of the search terms used.’” Walston v. U.S. Dep’t

of Defense,

(D.D.C. 2017) (quoting Oglesby,

). Here, while

Jones sets forth the search terms used by IT in conducting a search of one former AUSA’s email,

Jones does not state whether similar terms were used when she conducted her own search of

another former AUSA’s email. Nor does Jones indicate what search terms were used by the current

39 AUSAs who searched their own emails. Thus, the court will deny the parties’ renewed cross-

motions for summary judgment without prejudice as to the adequacy of the search and allow

Defendants an opportunity to either (1) submit an additional declaration from Jones attesting to

the search terms used in the original searches described above, or (2) conduct a new search for the

requested records and provide a sufficiently detailed declaration, which includes a description of

the search terms used, in support of that renewed search effort.

V. CONCLUSION AND ORDER

For the reasons stated above, Defendants’ Renewed Motion for Summary Judgment, ECF

No. 32, and Plaintiff’s Renewed Cross-Motion for Summary Judgment, ECF No. 33, are granted

in part and denied in part. To recap the court’s rulings:

1. Judgment is entered in favor of Plaintiff with respect to the 67 pages withheld in

full under Exemption 7(D).

2. Judgment is entered in favor of Defendants with respect to appropriate redactions

under Exemption 7(C) within the 67 pages withheld in full and the 33 pages released in part,

including the source’s lawyer’s name.

3. On or before October 9, 2018, Defendants may file any supplemental declaration(s)

as to the following:

a. The agency’s justification under Exemption 7(C) for withholding the name

of the source’s lawyer’s law firm; and

b. The adequacy of EOUSA’s search to include, at least, the relevant search

terms used to locate responsive emails for three of the four AUSAs.

4. Finally, no later than October 22, 2018, the parties shall file a Joint Status Report

that addresses (a) whether Plaintiff intends to challenge Defendants’ withholdings under

40 Exemptions 4 and 5; (b) whether there are any remaining issues with respect to the Civil Division

request; and (c) whether the parties intend to renew their motions for summary judgment with

respect to any disputes concerning disclosure of the law firm’s name or the adequacy of EOUSA’s

search. If the parties intend on further litigation, they shall propose a briefing schedule.

Dated: September 7, 2018 Amit P. Mehta United States District Judge

41