UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WEBSTER, et al., : : Plaintiffs, : Civil Action No.: 02-603 (RC) : v. : Re Document No.: 234 : U.S. DEPARTMENT OF JUSTICE, : : Defendant. :

MEMORANDUM OPINION

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This Freedom of Information Act (FOIA) and Privacy Act case was originally filed by

Plaintiff Carl Oglesby in March 2002. He sought records from the Federal Bureau of

Investigation (FBI) and the Central Intelligence Agency (CIA). During the course of the

litigation, Mr. Oglesby passed away, and the present plaintiffs—Ms. Barbara Webster and Ms.

Aron DiBacco, the administrator of his estate and his daughter, respectively—were substituted in

his stead. Defendant, the U.S. Department of Justice (DOJ), now moves for summary judgment

on behalf of the FBI, 1 arguing that the agency has fulfilled its statutory obligations. For the

reasons explained below, the Court agrees and will bring this long-running litigation to a close.

II. PROCEDURAL HISTORY

Mr. Oglesby filed this action in 2002, seeking access to “records pertaining to himself”

from the FBI and CIA. Compl. ¶¶ 5, 19, ECF No. 1. Since then, the parties have engaged in

multiple rounds of negotiations, record searches, document productions, and briefing. Not of all

1 The claims against the CIA were dismissed in 2007. See Mem. Op. and Order (Feb. 26, 2007), ECF No. 66. of this extensive procedural history is relevant here. The Court will focus on the more recent

developments that underlie DOJ’s pending motion, which is based on two different groups of

documents (each represented by its own Vaughn index).

The first Vaughn index has its roots in 2017. At that time, after some disagreements

about the scope of Mr. Oglesby’s requests, the Court ordered that the parties file new summary

judgment motions based on 16,803 pages that the Court had newly deemed responsive. See

Order (Aug. 10, 2017) at 4, ECF No. 219. 2 Shortly thereafter, the Court adopted a joint

suggestion of the parties 3: from the 16,803 pages, Plaintiffs would select a representative sample

of up to 350 pages that Defendant had released in part (plus an additional sample of 10

documents that Defendant had withheld in their entirety), which would be compiled into a new

Vaughn index. See Order (Sept. 11, 2017) at 2, ECF No. 221. In response to Plaintiffs’

selections, the FBI was able to locate 225 total pages that were within the scope of the 16,803

pages identified by the Court. Def.’s Mot. Summ. J. Ex. A (“Hardy Decl.”) ¶ 5, ECF No. 234-

1). 4 In February 2018, the FBI provided Plaintiffs with a copy of the corresponding Vaughn

index and a copy of the processed documents. Id. (citing Ex. A1 (“Vaughn Index of Plaintiff’s

2017 Sample”), ECF No. 134-2).

The second Vaughn index has its origins in 2011, when (for reasons not relevant here) the

Court ordered DOJ to reprocess Plaintiffs’ original FOIA requests. See Order (Aug. 8, 2011),

2 Because not all documents are separately paginated, the Court will refer to the ECF page numbers throughout this opinion. 3 See Joint Motion to Enter Proposed Schedule (Sept. 11, 2017) at 2, ECF No. 220. 4 Plaintiffs submitted these selections in two separate requests: the first on November 20, 2017, and the second on December 7, 2017. Hardy Decl. ¶ 5. Over the two requests, Plaintiffs selected a total of 740 pages. Id. According to DOJ, however, the majority of the selected pages were either not identifiable or were not within the scope of the 16,803 pages identified by the Court. Id. Plaintiffs have not challenged these representations or otherwise objected to the composition of the Vaughn index.

2 ECF No. 127. After DOJ completed the reprocessing in 2011 and 2012, the Court adopted a

similar joint proposal from the parties 5: from the reprocessed documents, Plaintiffs would select

a representative sample of 200 documents that were released in part (plus an additional sample of

10 documents that were withheld completely), which would likewise be compiled into a new

Vaughn index. See Order (May 22, 2018), ECF No. 230. Based on Plaintiffs’ selections, the

FBI ultimately reviewed 116 total pages. Hardy Decl. ¶ 6. 6 In September 2018, the FBI again

provided Plaintiffs with a copy of this second Vaughn index and the processed documents. Id.

(citing Ex. A2 (“Vaughn Index of Plaintiff’s 2018 Sample”), ECF No. 134-2).

On the basis of these two Vaughn indices, DOJ filed the currently pending motion for

summary judgment, which is now ripe for the Court’s consideration. See Mem. Supp. Def.’s

Mot. Summ. J. (“Def.’s MSJ”), ECF No. 234-4; Pls.’ Resp. Def.’s Mot. Summ. J. (“Pls.’

Opp’n”), ECF No. 243; Def.’s Reply to Pls.’ Resp. Def.’s Mot. Summ. J. (“Def.’s Reply”), ECF

No. 244.

III. LEGAL STANDARD

Summary judgment is proper when “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 “material” fact is one capable of affecting the substantive outcome of the litigation, see

Anderson v. Liberty Lobby, Inc.,

(1986), while a dispute is “genuine” if there

is enough evidence for a reasonable finder of fact to decide in favor of the non-movant, see Scott

v. Harris,

(2007). In the absence of an opposing party’s own contrary

5 See Supplemental Joint Status Report (March 9, 2018) at 2, ECF No. 226. 6 Plaintiffs submitted their selections—140 pages, plus 68 documents of undetermined length—on June 6, 2018. Hardy Decl. ¶ 6. According to DOJ, some of the pages were duplicative of pages that were previously selected by Plaintiffs, or did not exist.

As with the first Vaughn index, Plaintiffs have not challenged these representations or objected to the composition of the second index.

3 affidavits, declarations, or evidence, factual assertions in a moving party’s affidavits or

declarations may be accepted as true. See Neal v. Kelly,

(D.C. Cir. 1992).

“The vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.

Office of the U.S. Trade Representative,

(D.C. Cir. 2011). To carry its burden

on such a motion, an “agency must demonstrate that it has conducted a search reasonably

calculated to uncover all relevant documents,” even when a plaintiff does not challenge the

adequacy of an agency’s search for responsive records. Steinberg v. U.S. Dep’t of Justice,

(D.C. Cir. 1994) (internal citation and punctuation omitted). The agency must

also show that any responsive records that were not provided were properly withheld under one

of FOIA’s nine express statutory exemptions, see Citizens for Responsibility and Ethics in Wash.

v. U.S. Dep’t of Justice (CREW I),

(D.C. Cir. 2014), or that information

inside those records was “inextricably intertwined with” exempt information, Mead Data

Central, Inc. v. U.S. Dep’t of Air Force,

(D.C. Cir. 1977) (citations and

internal quotation marks omitted). To justify the invocation of an exemption, an agency can

submit affidavits that “describe the justifications 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.” Larson v. U.S. Dep’t of State,

(D.C. Cir. 2009) (quoting Miller v.

Casey,

(D.C. Cir. 1984)). Even when the use of a particular exemption is not

challenged, though, “the Court still has an independent duty to ‘determine for itself whether the

record and any undisputed material facts justify granting summary judgment.’” Tokar v. U.S.

Dep’t of Justice,

, 94 n.3 (D.D.C. 2018) (quoting Winston & Strawn, LLP v.

McLean,

(D.C. Cir. 2016)).

4 Additionally, as mentioned above, the parties here agreed to file dispositive motions

based on a subset of documents, compiled in two separate Vaughn indices. This kind of

“[r]epresentative sampling” is “an appropriate procedure to test an agency’s FOIA exemption

claims when a large number of documents are involved.” Bonner v. U.S. Dep’t of State,

(D.C. Cir. 1991) (citations omitted). “When presented with a representative

sample, a court considers the documents produced or described with the understanding that

‘[t]hey count not simply for themselves, but for presumably similar non-sample documents.’”

Clemente v. FBI,

(D.D.C. 2012) (quoting Bonner,

). An

indication that information was improperly redacted from the sampled documents suggests

similar errors infect the non-sampled documents; conversely, if the sampled documents reveal no

improper withholdings, the Court can conclude the agency appropriately applied exemptions to

the whole universe of documents at issue. See

IV. ANALYSIS

To frame the discussion, the Court notes that DOJ’s motion for summary judgment is

largely uncontested. Plaintiffs’ opposition is brief, comprising just twelve double-spaced pages

set in large, bolded font. See general Pls.’ Opp’n. Its main argument appears to attack the

adequacy of DOJ’s search for responsive records. See id. at 4 (“A central issue in this case from

the outset has been the Government’s attempt to pretend that no components of the FBI had

records that were responsive to Oglesby/DiBacco’s requests.”). Otherwise, it does not object to

the (1) the use of sampling procedures as the basis for summary judgment (procedures which

were, after all, jointly proposed by the parties) or the composition of the two Vaughn indices that

resulted from that sampling process, (2) any of the specific exemptions invoked by DOJ, or (3)

5 DOJ’s representation that all non-exempt, segregable information within each record was

released. See generally id.

A. Adequacy of the Search

The Court first considers the adequacy of the FBI’s search. See Steinberg,

. As Defendant notes, the FBI has conducted “multiple searches” during the course of the

litigation. Def.’s MSJ at 10; see also Hardy Decl. ¶ 52 (mentioning various searches, described

in affidavits, that were undertaken from 1999 through 2011). However, Defendant sensibly

suggests that the Court focus on the search conducted after the 2011 reprocessing order, when

the FBI conducted a fresh round of searches for documents responsive to Plaintiffs’ request.

Def.’s MSJ at 10.

Relying on the Declaration of FBI employee David M. Hardy (Section Chief of the

Record/Information Dissemination Section, Information Management Division), Defendant

details at length the steps taken to locate responsive documents at that time. See Def.’s MSJ at

8–16. Given Mr. Oglesby’s request for “records pertaining to himself,” the FBI searched its

Central Records System (“CRS”), where the agency “indexes information about individuals,

organizations, events, and other subjects of investigative interest for future retrieval.”

at 10

(citing Hardy Decl. ¶ 56). As search terms, the FBI used thirty-five variations of Mr. Oglesby’s

name. Id. at 12. According to Mr. Hardy, “[b]ecause CRS is indexed by individual names,

organizations and events, the FBI’s search terms were designed to locate any records responsive

to plaintiffs’ request and would in fact have located any responsive records.” Id. at 12.

Additionally, the FBI more recently conducted additional searches for documents that it could

not locate during the 2011 reprocessing. Id. at 14.

6 In challenging the FBI’s efforts, Plaintiffs appear to suggest that other responsive

documents might exist, possibly within the control of other agencies or DOJ components:

The FBI itself referred numerous documents to other components of the DOJ and to other government agencies without getting a complete accounting of the releasability [sic] of the documents or information withheld. New evidence has emerged which raises extremely important issues about whether the DOJ has developed procedures and practices which enable it to deny the existence or relevance of potentially responsive records, both with respect to the FBI, the DOJ and the Bureau of Prisons.

Pl.’s Opp’n at 5. Plaintiffs proceed to discuss developments in a separate case, Clemente v. FBI,

No. 13-cv-108 (D.D.C.), which appears to concern certain Bureau of Prison (BOP) policies. To

the extent that Plaintiffs are suggesting that the FBI erred by failing to properly coordinate with

another agency or search another agency’s records, they are mistaken. FOIA requests are

properly directed to a particular agency or component. See Gordon v. Courter,

(D.D.C. 2015) (noting that, “[p]er FOIA regulations, requests must be sent ‘directly to

the FOIA office of the component that maintains the records being sought,’” quoting

(a)(1)). And the recipient of a request is only responsible for searching records under its

control. See Antonelli v. U.S. Parole Com’n,

(D.D.C. 2009) (rejecting

challenge to agency’s search based on claim that additional records existed in files of other DOJ

components, because “an agency component is obligated to produce only those records in its

custody and control at the time of the FOIA request”).

In sum, the Court agrees with Defendant that the steps outlined in the Hardy Declaration

represent “a good-faith effort to conduct a search for the requested records, using methods which

can be reasonably expected to produce the information requested.’” Nation Magazine v. U.S.

Customs Serv.,

(D.C. Cir. 1995) (quoting Oglesby v. U.S. Dep’t of the Army,

(D.C. Cir. 1990)).

7 B. Exemptions

Next, the Court reviews Defendant’s invocation of various FOIA exemptions. As Mr.

Hardy explains, the FBI processed the responsive records under FOIA 7 and determined that

some or all of various documents should be withheld. See Hardy Decl. ¶ 69. In some cases, the

FBI records contained information that originated from other agencies; in these situations,

consistent with DOJ policy, the FBI referred the record to the appropriate agency for a disclosure

determination.

¶¶ 72–73. Mindful that the scope of its inquiry is limited, the Court analyzes

each agency’s exemption claim below. See Larson,

(“If an agency’s statements

supporting exemption contain reasonable specificity of detail as to demonstrate that the withheld

information logically falls within the claimed exemption and evidence in the record does not

suggest otherwise, . . . the court should not conduct a more detailed inquiry to test the agency’s

judgment and expertise or to evaluate whether the court agrees with the agency’s opinions.”).

1. Exemption 1

FOIA’s Exemption 1 protects matters which are (1) “specifically authorized under

criteria established by an Executive order to be kept secret in the interest of national defense or

foreign policy” and (2) “are in fact properly classified pursuant to such Executive order.”

(b)(1). The applicable classification order, Executive Order (“E.O.”) No. 13,526,

(Dec. 29, 2009), sets forth “both substantive and procedural criteria for

classification.” Judicial Watch, Inc. v. U.S. Dep’t of Def.,

(D.C. Cir. 2013).

Among other things, the information must fall within certain subject-matter classification

categories, and the unauthorized disclosure of the information must reasonably be expected to

cause some damage to national security.

7 The FBI determined that the Privacy Act did not apply and thus “processed the records under the FOIA to achieve maximum disclosure.” Def.’s MSJ at 17 (citing Hardy Decl. ¶ 67).

8 a. FBI

Defendant cites Mr. Hardy’s declaration to explain how certain material withheld by the

FBI meets the requirements of E.O. 13,526 and, by extension, Exemption 1. See Def.’s MSJ at

18–21. As a classifying authority, Mr. Hardy determined that the substantive information

withheld was properly classified, as disclosure could reveal intelligence sources or methods and

lead to diplomatic or economic retaliation against the United States. Def.’s MSJ at 19–20 (citing

Hardy Decl. ¶¶ 82, 84). He also confirms that the procedural requirements of E.O. 13,256 were

observed—for example, that each document was marked and stamped with the appropriate

classification designation. See Hardy Decl. ¶ 80.

b. CIA

Defendant also explains that the FBI referred some records to the CIA, which also

determined—according to the declaration of Ms. Antoinette Shiner—that some information

should be withheld pursuant to Exemption 1. See Def.’s MSJ at 23 (citing Ex. JJ (“Shiner

Decl.”), ECF No. 234-2). Like Mr. Hardy’s declaration, Ms. Shiner’s explains how the withheld

information meets the substantive and procedural requirements of E.O. 13,526 and, thus,

Exemption 1. Specifically, Ms. Shiner avers that the information withheld was properly

classified because it concerned intelligence activities and its disclosure could reasonably be

expected to result in damage to national security. Shiner Decl. ¶¶ 6–7. According to Ms. Shiner,

some of the withheld pages contain detailed information about human sources, while the

disclosure of other material could reasonably be expected to reveal an intelligence method that is

still in active use by the CIA. Id. at ¶ 10.

Particularly given that courts have “consistently deferred to executive affidavits

predicting harm to the national security,” Larson,

, the Court concludes that the

9 Hardy and Shiner declarations describe, with reasonable detail, how the information withheld by

the FBI and CIA logically falls under Exemption 1.

2. Exemption 3

Exemption 3 is essentially an incorporation provision: it allows the withholding of

records that are “specifically exempted from disclosure by [a different] statute . . . provided that

such statute (A)(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.”

(b)(3). 8

a. FBI and CIA

As Defendant explains, the FBI withheld certain information pursuant to Section

102A(i)(1) of the National Security Act of 1947 (“NSA”), as amended,

(i)(1).

See Def.’s MSJ at 24. The NSA requires the Director of National Intelligence to “protect

intelligence sources and methods from unauthorized disclosure.”

“As interpreted by the

D.C. Circuit, this language exempts from disclosure under FOIA material that the agency

‘demonstrates . . . can reasonably be expected to lead to unauthorized disclosure” of intelligence

methods or sources.” Nat’l Sec. Counselors v. CIA,

(D.D.C. 2018)

(quoting Wolf v. CIA.,

(D.C. Cir. 2007)).

Mr. Hardy avers that certain information qualified for withholding under the NSA, and

thus under Exemption 3, based on his determination that “the FBI’s intelligence sources and

methods would be revealed if any of the withheld information is disclosed to Plaintiffs.” Hardy

Decl. ¶ 88.

8 The OPEN FOIA Act of 2009 established an additional requirement: any statute “enacted after the date of enactment of the OPEN FOIA Act of 2009, [must] specifically cite[] to this paragraph” in order to qualify under Exemption 3.

(b)(3)(B).

10 Similarly, as Defendant explains, the CIA also invoked the NSA to withhold certain

information under Exemption 3. Ms. Shiner explains that certain information (which was also

protected by Exemption 1, as discussed above) would reveal “specific sources and methods of

intelligence collection” and “how the CIA controls dissemination of classified information.”

Shiner ¶ 16.

While the Hardy and Shiner declarations lack extensive detail, the Court finds that they

do adequately assert that the information withheld qualifies under Exemption 3. Courts have

found similar averments sufficient. See, e.g., Am. Ass’n of Women, Inc. v. U.S. Dep’t of Justice,

(D.D.C. 2016) (approving the withholding, under Exemption 3, of

“information relating to intelligence sources and methods” without further describing the

records).

b. IRS

The Internal Revenue Service (IRS) also requested that the FBI withhold a document

under Exemption 3 and 6103 of the Internal Revenue Code (IRC),

(a). See

Def.’s MSJ at 26. According to Mr. Hardy’s declaration, the IRS advised that the document at

issue was Mr. Oglesby’s return information, which the Tax Code treats as confidential. Hardy

Decl. ¶ 132; see also

(a) (“Returns and return information shall be

confidential” and not disclosed “except as authorized by this title”). The Court finds that the FBI

and IRS have reasonably demonstrated that the withheld information logically falls within

Exemption 3. See Judicial Watch, Inc. v. SSA,

(D.C. Cir. 2012) (finding

11 records that would disclose “return information” as “protected from disclosure by the Tax Code”

and “in turn exempt under FOIA”). 9

3. Exemption 7

Exemption 7 protects six different categories of law enforcement information from

disclosure. See

(b)(7). To qualify under any of the categories, the information at

issue must first meet a threshold requirement: that it was “compiled for law enforcement

purposes.”

Here, before describing the applicability of specific sub-categories under Exemption 7,

Defendant first argues that all of the information met the threshold requirement. As Mr. Hardy

explains, the “[t]he investigative files at issue were compiled during the FBI’s criminal

investigation of the subject’s and other third parties’ crimes involving the internal security of the

United States; domestic terrorism threats; and foreign counterintelligence.” Hardy Decl. ¶ 91

(citations omitted). Based on that representation, the Court agrees that records at issue meet this

threshold standard. See Blackwell v. FBI,

(D.C. Cir. 2011) (“To show that the

disputed documents were ‘compiled for law enforcement purposes,’ the FBI need only ‘establish

a rational nexus between the investigation and one of the agency’s law enforcement duties and a

connection between an individual or incident and a possible security risk or violation of federal

law’”) (quoting Campbell v. U.S. Dep’t of Justice,

(D.C. Cir. 1998))).

9 Defendant has indicated that the IRS would disclose the document at issue if Plaintiffs provided the relevant disclosure authorization, but Plaintiffs have apparently not responded to this offer. See Def.’s’ MSJ at 27 n.21 (“[D]efendant has no issue disclosing this document to plaintiffs provided that th[e] simple documentation (Tax Information Authorization Forms) are [sic] provided. Counsel reached out to opposing counsel for this information on October 29, 2018, but the requested information has not been provided.”) (citing Hardy Decl. ¶¶ 133–35).

12 a. Exemption 7(C) 10

Exemption 7(C) exempts records or information compiled for law enforcement purposes

when disclosure “could reasonably be expected to constitute an unwarranted invasion of personal

privacy.”

(b)(7)(C). In reviewing a claim under Exemption 7(C), a court has to

determine if there is a substantial privacy interest in the information. See Am. Civil Liberties

Union v. Dep’t of Justice,

, 6–7 (D.C. Cir. 2011). If there is such an interest, a court

must balance it against the public interest, “focus[ing] on ‘the citizens’ right to be informed

about what their government is up to.’” Davis v. Dep’t of Justice,

(D.C.

Cir. 1992) (quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press,

(1989) (internal quotation omitted)).

As Mr. Hardy details, the FBI withheld the names and/or identifying data of (1) “third

parties who were interviewed and/or provided information to the FBI during the course of its

investigation of the subject and other third parties,” Hardy Decl. ¶ 95, (2) “state and local law

enforcement personnel” who were “aid[ing] the FBI” in the relevant investigative activities, id. ¶

96, (3) “third parties who were merely mentioned in the criminal investigative files responsive to

Plaintiffs’ request,” id. ¶ 97, (4) “third parties who were of investigative interest to the FBI,” id.

¶ 98, and (5) “FBI Special Agents (‘SAs’)” and “FBI support employees” who were involved

with or handled tasks related to the investigations, id. ¶¶ 99–100. Courts have found these

categories of information as worthy of protection under Exemption 7(C). Namely, as to

10 Coextensively with Exemption 7(C), the FBI also invoked Exempt 6, which protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

(b)(6). In cases like this one, “[w]hen information is claimed to be exempt from disclosure under both provisions, courts ‘focus on . . . Exemption 7(C) because it provides broader privacy protection than Exemption 6 and thus establishes a lower bar for withholding material.’” Citizens for Responsibility & Ethics in Washington v. Dep’t of Justice (CREW II),

(D.C. Cir. 2017) (quoting CREW I,

n.2).

13 categories (1), (3), and (4), our Circuit has recognized that “private citizens—such as witnesses,

informants, and suspects—have particularly strong privacy interests” in their “private personal

information.” Hodge v. FBI,

, 580–81 (D.C. Cir. 2013); see also Dillon v. U.S.

Dep’t Justice,

(D.D.C. 2015) (finding FBI properly withheld names

and identifying information of third parties “merely mentioned” in responsive records).

Similarly, as to categories (2) and (5), courts have found that federal and state law enforcement

personnel involved in investigations have cognizable interests in their names and personal

information. See Dent v. Executive Office for U.S. Attorneys,

(D.D.C.

2013) (names and identifying information of FBI Special Agents and support personnel); Amuso

v. U.S. Dep’t of Justice,

(D.D.C. 2009) (names and ranks of local law

enforcement personnel).

Mr. Hardy also explains why these recognized privacy interests outweigh any interest in

disclosure. See Def.’s MSJ at 35 (“In all five categories, the FBI identified valid privacy

interests in non-disclosure and correctly determined that disclosure of this information would not

shed light on the operations and activities of the FBI.”) (citing Hardy Decl. ¶¶ 92–100). And in

this round of summary judgment briefing, Plaintiffs have not articulated any public interest that

would be furthered by such disclosures. In earlier briefing, however, Mr. Oglesby did identify

some plausible interests. See Pl.’s Second Renewed Cross-Mot. Summ. J. at 23-30 (“Pl.’s

Second MSJ”), ECF No. 107. For example, the disclosure of FBI agents’ names, he argued,

“show[s] which government official is doing what. This is a basic form of accountability.” Id. at

26. In a similar vein, he suggested that the release of the names of those third-parties who were

interviewed, mentioned in files, or of investigative interest is justified, because it would shed

light on how the government conducted its investigations. See id. at 27 (“Whether the

14 interviewee is a member of one political or social organization or another, whether the

interviewee is connected to the investigation or persons involved in it by political or familial or

business relationships, these are matters of public interest because they show how the

government is doing its investigation and who is involved in it.”); id. at 28 (“Th[e] claim that

disclosure of the identities of who was of investigative interest would not enlighten the public as

to how the FBI conducts its work is simply preposterous.”). For its part, Defendant also

previously responded to these arguments. See Def.’s Mem. Supp. Opp’n to Pl.’s Second

Renewed Cross-Mot. Summ. J. (“Def.’s Second Opp’n”) at 31 (“[P]laintiff fails to indicate how

the public interest will be furthered by the release of these names and identifying information.”).

Based on the arguments raised in the previous round of briefing and its own assessment,

the Court finds that the privacy interests identified by the government outweigh any plausible

public interest in the specific information withheld under Exemption 7(C). Mr. Oglesby is

correct, of course, that revealing the names of interviewees, investigation targets, and FBI

personnel would shed some marginal light on how the FBI conducted its operations. But that is

true of any request to disclose these kinds of information, and courts have repeatedly recognized

that such exemptions can be justified. In the absence of more particular reasons why the

disclosure of names and identifying information would shed light on the government’s

(mis)conduct, the Court is unable to conclude that disclosure is warranted. Cf. U.S. Dep’t of

State v. Ray,

(1991) (“The unredacted portions of the documents that have

already been released . . . inform the reader about the State Department’s performance of its

duty. . . . The addition of the redacted identifying information would not shed any additional

light on the Government’s conduct of its obligation.”)

15 b. Exemption 7(D)

Exemption 7(D) generally exempts records or information compiled for law enforcement

purposes when disclosure “could reasonably be expected to disclose the identity of a confidential

source” or “information furnished by a confidential source.”

(b)(7)(D). As its

text suggests, the exemption is meant to “to assist federal law enforcement agencies” in their

efforts “to obtain, and to maintain, confidential sources, as well as to guard the flow of

information to these agencies.” Parker v. Dep’t of Justice,

(D.C. Cir. 1991).

Courts have been particularly aware of the risks of disclosure in this context. See Billington v.

U.S. Dep’t of Justice,

(D.D.C. 2004) (“Exemption 7(D) has long been

recognized as affording the most comprehensive protection of all FOIA’s law enforcement

exemptions.”) (citing Voinche v. FBI,

(D.D.C. 1996)).

As Mr. Hardy details in his declaration, the FBI invoked Exemption 7(D) to withhold the

(1) names and identifying information of third parties who received express assurances of

confidentiality, as well as the information these third parties disclosed, Hardy Decl. ¶¶ 104–106,

(2) confidential “source symbol numbers,” which are permanently assigned to confidential

sources as identifiers,

¶¶ 107–109, (3) similarly confidential “source file numbers,”

¶¶

110–112, and finally (4) information that was provided to the FBI by a local law enforcement

agency under an express assurance of confidentiality, id. ¶ 113. Non-disclosure of all this is

justified, according to Mr. Hardy, because releasing it would have a “chilling effect on the

activities and cooperation of other sources” and “greatly impair one of the FBI’s most important

means of collecting information.” Id. ¶ 103.

The Court finds that Defendant has reasonably demonstrated how all these kinds of

information logically falls within Exemption 7(D). First, the names and identifying information

16 of third parties who received express assurances of confidentiality, as well as the information

these third parties disclosed, falls well with the ambit of the exception. See Schoenman v. FBI,

(D.D.C. 2011) (upholding invocation of Exemption 7(D) where FBI

“explain[ed], in a reasonably detailed and non-conclusory manner, that the information at issue

in each instance was received in connection with an express grant of confidentiality”); Skinner v.

U.S. Dep’t of Justice,

(D.D.C. 2010) (upholding use of Exemption

7(D) to withhold “information provided by or that would identify confidential sources” when

agencies’ “declarants establish that their agencies’ respective cooperating witnesses and

informants provided information under an express assurance of confidentiality.”). Similarly, the

symbol numbers and file numbers associated with particular confidential sources has been

repeatedly recognized as falling under Exemption 7(D). See Skinner,

(also approving the withholding of “the numbers assigned to” confidential sources); Putnam v.

U.S. Dep’t of Justice,

(D.D.C. 1995) (same as to permanent symbol

numbers assigned to confidential sources and file numbers that could be used to identify the

sources). And lastly, courts have recognized that information provided confidentially by local

law enforcement agencies can be lawfully withheld. See

(b)(7)(D) (noting that

confidential sources include “a State, local, or foreign agency or authority . . . which furnished

information on a confidential basis”); Weisberg v. U.S. Dep’t of Justice,

(D.C. Cir. 1984) (finding that “confidential information supplied by foreign and local law

enforcement agencies is clearly within the purview of Exemption 7(D)”).

c. Exemption 7(E)

Exemption 7(E) exempts records or information compiled for law enforcement purposes

when disclosure would reveal “techniques and procedures for law enforcement investigations or

17 prosecutions” or “guidelines for law enforcement investigations or prosecutions if such

disclosure could reasonably be expected to risk circumvention of the law.”

(b)(7)(E). Circuit precedent “sets a relatively low bar for the agency to justify withholding”

information under Exemption 7(E). Blackwell,

.

Here, Mr. Hardy explains that the FBI asserted the exemption to “protect the application

of certain sensitive investigative techniques within the responsive records.” Hardy Decl. ¶ 116.

Specifically, this included “information pertaining to the types and dates of investigations

referenced in the records at issue, ” id. ¶ 117, as well as information concerning “coordination

with [other government agencies] pertaining to the records at issue,” id. ¶ 118. Disclosure of this

information would, according to Mr. Hardy, allow criminals to “predict FBI investigative

reactions, adjust their behavior accordingly, and avoid detection and/or disruption by FBI

investigative activities,” id. ¶ 117, and “to structure their behavior to avoid investigative scrutiny

by additional government agencies,” id. ¶ 118. As with the other exemptions, the Court finds

that the Defendant’s representations sufficiently demonstrate that the withheld information

logically falls within Exemption 7(E). See Poitras v. Dep’t of Homeland Sec.,

(D.D.C. 2018) (approving the withholding of “dates or types of investigations” in order

“to prevent the disclosure of FBI techniques and procedures and to prevent the dissemination of

information that might be gleaned from those techniques and procedures”); Council on Am.-

Islamic Relations, California v. FBI,

(S.D. Cal. 2010) (finding that

“the FBI properly withheld the information relating to the dates and types of investigations”

given that “disclosure of this information would inform the targets of what types of activities

trigger the initiation of what type of an investigation”); Morley v. CIA,

, 1128

18 (D.C. Cir. 2007) (withholding information that could provide insight into techniques and

procedures used by law enforcement agencies in coordination with the CIA).

C. Segregability

Finally, the Court has a duty to consider whether the agency has produced all segregable,

nonexempt information. Elliott v. U.S. Dep’t of Agric.,

(D.C. Cir. 2010)

(referring to court’s “affirmative duty to consider the segregrability issue sua sponte” (quoting

Morley,

).

In this case, the two Vaughn indices describe each document that was withheld in part or

in full and describe the specific kind of exemptions asserted as to each (and when appropriate,

designate a specific subcategory of information within the claimed exemption). See generally

Vaughn Index of Plaintiff’s 2017 Sample; Vaughn Index of Plaintiff’s 2018 Sample. In his

declaration, Mr. Hardy also separately avers that “[e]very effort was made to provide Plaintiffs . .

. with all reasonably segregable, non-exempt information in the responsive records,” Hardy Decl.

¶ 69. He reports that the agency conducted a page-by-page review and that any further release of

information would “trigger[] foreseeable harm” to one or more interests protected by the cited

FOIA exemptions, id. ¶ 137. Similarly, Ms. Shiner, on behalf of the CIA, avers that the agency

conducted “a document-by-document and line-by-line review” of the records referred to it by the

FBI and determined no additional information could be released “without jeopardizing classified

and statutorily-protected material.” Shiner Decl. ¶ 17. Based on these representations, the

Court is satisfied that Defendant has met the segregrability requirement. See Milton v. U.S.

Dep’t of Justice,

(D.D.C. 2012) (“An affidavit stating that an agency

official conducted a review of each document and how she determined that no document

contains segregable information fulfills the agency’s obligation.”).

19 V. CONCLUSION

Taken as a whole, the Defendant’s Vaughn indices and related submissions satisfy the

Court that Defendant has fulfilled its obligations under FOIA. For that reason, Defendant’s

motion for summary judgment is GRANTED. An order consistent with this Memorandum

Opinion is separately and contemporaneously issued.

Dated: March 31, 2020 RUDOLPH CONTRERAS United States District Judge

20