UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARIO DION WOODWARD, : : Plaintiff, : Civil Action No.: 18-1249 (RC) : v. : Re Document No.: 40, 43 : U.S. MARSHALS SERVICE, : : Defendant. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF’S RENEWED MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Mario Dion Woodward filed the FOIA request at issue in this case seeking

records pertaining to the use of any cell phone tracking technology during the criminal

investigation that ultimately led to his conviction of capital murder and death sentence. He

believes that investigating authorities, including members of the United States Marshals Service

(“USMS”), may have used cellphone tracking technology without a warrant in furtherance of

that investigation.

This Court previously considered and rejected both parties’ cross-motions for summary

judgment, finding that in camera review of the responsive documents and further explanation of

the agency’s withholdings was required. Woodward v. U.S. Marshals Serv.,

, slip op. at 16 (D.D.C. 2021) [hereinafter “Mem. Op.”]. The USMS has now submitted the

unredacted documents for in camera review, see Notice of In Camera Submission, ECF No. 39,

and has renewed its Motion for Summary Judgment, see Def.’s Renewed Mot. Summ. J. (“Def.’s

Mot.”), ECF No. 40. Mr. Woodward has opposed that motion, see Mem. L. Opp’n to Def.’s Renewed Mot. Summ. J. (“Pl.’s Opp’n”), ECF No. 42, and has filed his own Renewed Cross-

Motion for Summary Judgment, see Pl.’s Renewed Cross-Mot. Summ. J. Pursuant to Fed. R.

Civ. P. 56 (“Pl.’s Cross-Mot.”), ECF No. 43, which the USMS has opposed, see Reply in Supp.

Def.’s Renewed Mot. Summ. J. & Opp’n Pl.’s Cross-Mot. Summ. J. (“Def.’s Reply & Opp’n”),

ECF No. 45. The Court will grant in part and deny in part both motions.

II. FACTUAL BACKGROUND 1

Plaintiff Mario Dion Woodward is currently on death row for the murder of Officer Keith

Houts of the Montgomery Police Department in 2006. Def.’s Mot. at 2; Pl.’s Cross-Mot. at 6.

Mr. Woodward, who was identified as a suspect in the shooting, was located and arrested by the

USMS the next day in Atlanta, Georgia.

He was indicted, tried, and convicted by a jury in

August 2008 in Alabama.

“At sentencing, the judge overrode the jury’s recommendation of

a sentence of life without the possibility of parole and, instead, imposed a death sentence.”

Mem. Op. at 7. Mr. Woodward believes that the investigation which preceded his arrest may

have involved the use of a cell-site simulator, more colloquially known by the trade name

‘stingray,’ and that this technology was used without a warrant. Ex. 1 to Pl.’s Opp’n ¶ 7. Mr.

Woodward therefore made a FOIA request to the USMS in December 2015 seeking:

1 The material facts of this case are not in dispute. See Ex. 2 to Pl.’s Opp’n at 1 (“Plaintiff does not dispute the facts as stated in the USMS’ Statement of Material Facts . . . . Plaintiff respectfully submits that no material facts remain in dispute.”). The USMS disputes only the “materiality” and “characterization” of Plaintiff’s description of the USMS’s initial response to the request, but any such dispute has no bearing on the legal issues before the Court. Ex. 1 to Def.’s Reply & Opp’n ¶ 3. The USMS also declined to admit that “In light of the USMS’ denial of his FOIA request, Plaintiff filed this action . . . seeking declaratory and injunctive relief requiring the production of all documents responsive to his request.” Id. ¶ 4. The record in this case leaves no doubt that Woodward did indeed request such relief, Compl. at 17–18, and any disagreement the USMS may have about his entitlement to that relief or reasons for requesting it do not create a disputed issue of material fact for the purposes of resolving the present cross motions before the Court.

2 All records in any way relating to, pertaining to or mentioning the use of any cell phone tracking technology during the investigation of the shooting death of Officer Keith Houts on September 28, 2006, by state and/or federal law enforcement located in the State of Alabama and/or the State of Georgia, including but not limited to the use of any GPS or “stingray” technology by the Alabama Bureau of Investigations or the U.S. Marshalls [sic] located in Alabama and Georgia.

Ex. 1 to Def.’s Reply & Opp’n ¶ 1.

The present FOIA action was filed on May 29, 2018. Id. ¶ 4. Following the filing of the

Complaint, the USMS produced 300 pages of responsive records subject to withholdings under

FOIA Exemptions 6, 7(C), 7(E), and 7(F). Id. ¶ 6. The parties agree that only three disputed

issues require the Court’s resolution:

• The USMS’s withholding of names and contact information for law enforcement officers under FOIA Exemptions 6, 7(C), and 7(F);

• The USMS’s withholding of references to cell phone tracking technology, including but not limited to specialists in such technology, to the extent they exist, under FOIA exemptions 6, 7(C), 7(E), and 7(F); and

• The USMS’s full withholding of pages 23, 38, 40, 41–53, and 72–137 of its June 14, 2019 production under the same exemptions.

Id. ¶ 7; Joint Status Rep. at 2, ECF No. 26.

III. LEGAL STANDARD

The Freedom of Information Act is meant “to pierce the veil of administrative secrecy

and to open agency action to the light of public scrutiny.” U.S. Dep’t of State v. Ray,

(1991) (quoting Dep’t of Air Force v. Rose,

(1976)). The FOIA

statute “directs that ‘each agency, upon any request for records . . . shall make the records

promptly available to any person’ unless the requested records fall within one of the statute’s

nine exemptions.” Loving v. Dep’t of Def.,

(D.C. Cir. 2008) (quoting

(a)(3)(a)). Review of an agency’s FOIA determination is de novo.

(a)(4)(B).

3 “FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defs. of Wildlife v. U.S. Border Patrol,

(D.D.C. 2009) (citing Bigwood v.

U.S. Agency for Int’l Dev.,

(D.D.C. 2007)). Rule 56 of the Federal Rules

of Civil Procedure provides that summary judgment shall be granted “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 “material” fact is one capable of affecting the

substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc.,

(1986). A dispute is “genuine” if there is enough evidence for a reasonable jury to return a

verdict for the non-movant. See Scott v. Harris,

(2007).

To prevail on a motion for summary judgment in a FOIA case, “the defending agency

must prove that each document that falls within the class requested either has been produced, is

unidentifiable or is wholly exempt from the Act’s inspection requirements.” Weisberg v. U.S.

Dep’t of Justice,

(D.C. Cir. 1980) (internal quotation marks omitted) (quoting

Nat’l Cable Television Ass’n v. FCC,

(D.C. Cir. 1973)). “The agency bears

the burden of establishing that a claimed exemption applies,” Citizens for Resp. & Ethics in

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

(D.C. Cir. 2014), and exemptions

are “given a narrow compass,” U.S. Dep’t of Just. v. Tax Analysts,

(1989). A

court “may award summary judgment solely on the basis of information provided by the

department or agency in declarations” if “the declarations describe ‘the documents and 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.’” Citizens for Ethics &

4 Responsibility in Wash. v. Dep’t of Labor,

(D.D.C. 2007) (quoting Mil.

Audit Project v. Casey,

(D.C. Cir. 1981))).

IV. ANALYSIS

Exemption 7 of FOIA allows an agency to withhold “records or information compiled for

law enforcement purposes,” but only within the context of certain enumerated subsections.

(b)(7). It is undisputed here that the records at issue—related to “the investigation

of the shooting death of Officer Keith Houts . . . by state and/or federal law enforcement,” see

Ex. 1 of Def.’s Reply & Opp’n ¶ 1—were compiled for a law enforcement purpose, thus

bringing them within the scope of Exemption 7. See Pinson v. Dep’t of Just.,

(D.D.C. 2017) (“In order to withhold documents under Exemption 7, the agency must,

as a preliminary matter make a threshold showing demonstrating that the records were compiled

for a law enforcement purpose.” (cleaned up)). Each subcategory of Exemption 7 exempts

different types of documents and has a separate legal standard for its application.

The USMS has asserted subcategories 7(C), 7(E), and 7(F) to withhold responsive

documents in full or in part. Mr. Woodward does not object to every full or partial withholding.

See Ex. 1 of Pl.’s Opp’n ¶ 18; Joint Status Rep. at 2, ECF No. 26. Luckstone Supp. Dec. ¶ 5. In

its prior opinion, this Court noted that the USMS’s “application of these three exemptions is

generally coextensive.” Mem. Op. at 5. Upon review of the now supplemented record, however,

it is clear to the Court that not all of the full or partial withholdings invoke the same subsections,

particularly with respect to the partial withholdings. The Court will therefore evaluate the partial

redactions first, before turning to the pages that were withheld in full.

5 A. Exemption 7(C)

Exemption 7(C) 2 protects “records or information compiled for law enforcement

purposes,” and which, if disclosed, “could reasonably be expected to constitute an unwarranted

invasion of personal privacy.”

(b)(7)(C). The Court must first examine the

private interest at stake and the proffered public interest in disclosure, and then balance those

competing interests to determine if the information is properly withheld. See CREW, 746 F.3d at

1091–96. On the private interest side of the ledger, 7(C)’s protective standard derives from the

fact that “the very mention of an individual’s name” in law enforcement records could “engender

comment and speculation and carries a stigmatizing connotation.” Roth v. U.S. Dep’t of Just.,

(D.C. Cir. 2011) (quoting Schrecker v. U.S. Dep’t of Just.,

(D.C. Cir. 2003)). That interest can be impacted by the circumstances of the subject whose

privacy is implicated, however. See, e.g., CREW,

(“DeLay’s obvious privacy

interest in keeping secret the fact that he was the subject of an FBI investigation was diminished

by his well-publicized announcement of that very fact.”). In contrast, “the public interest side of

the balance is not a function of the identity of the requester.” Pub. Citizen Health Rsch. Grp. v.

Food & Drug Admin.,

(D.C. Cir. 1999) (cleaned up); see also Multi Ag.

2 The USMS has also asserted Exemption 6 over the same materials, which allows an agency to withhold “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

(b)(6). Exemptions 6 and 7(C) both require a balancing of public and private interests, Beck v. U.S. Dep’t of Just.,

(D.C. Cir. 1993), but “Exemption 7(C) is more protective of privacy than Exemption 6 and thus establishes a lower bar for withholding material.” Prison Legal News v. Samuels,

, 1146 n.5 (D.C. Cir. 2015) (cleaned up); see also U.S. Dep’t of Def. v. Fed. Lab. Relations Auth.,

, 496 n.6 (1994) (“Exemptions 7(C) and 6 differ in the magnitude of the public interest that is required to override the respective privacy interests protected by the exemptions.”). Accordingly, the Court will address the USMS’s asserted withholdings under Exemption 7(C) only. See Fischer v. U.S. Dep’t of Just.,

, 47 n.17 (D.D.C. 2009).

6 Media LLC v. Dep’t of Agric.,

, 1231 n.2 (D.C. Cir. 2008) (“[T]he use for which

the requestor seeks the information is not relevant for purposes of determining the public interest

under FOIA Exemption 6.”). Rather, the public interest turns on “the nature of the requested

document and its relationship to the basic purpose of the Freedom of Information Act to open

agency action to the light of public scrutiny.” U.S. Dep’t of Just. v. Reps. Comm. For Freedom

of Press,

(1989) (cleaned up).

The USMS invoked Exemption 7(C) to justify its redactions of names and other personal

identifying information throughout its submission, including of law enforcement officials. 3 This

Court has already held, and continues to hold, that “that disclosure of the personally identifying

information in USMS’s files implicates strong privacy interests.” Mem. Op. at 8. The official

duties of those individuals, the already-public nature of the involvement of some, and the

passage of time may marginally lessen those personal privacy interests, but any such reduction is

minimal. See Schrecker,

(“The passage of time, without more, does not

materially diminish these interests.”); Lesar v. U.S. Dep’t of Just.,

(D.C. Cir.

1980) (“In their capacity as public officials FBI agents may not have as great a claim to privacy

as that afforded ordinarily to private citizens, but the agent by virtue of his official status does

not forgo altogether any privacy claim . . . .”); 100Reporters LLC v. U.S. Dep’t of Just.,

(D.D.C. 2017) (“Courts have acknowledged that . . . the risk[s] of harassment,

3 Woodward does not appear to object to the withholding of the identifying information of individuals such as informants and witnesses. See Ex. 2 of Pl.’s Renewed Cross-Mot. ¶ 7(“[T]the parties have narrowed the remaining areas of dispute in this case to . . . withholding of names and contact information for law enforcement officers under FOIA Exemption[] . . . 7(C) . . . .”). Regardless, the Court finds that the privacy interest of informants, witnesses, and other third parties who were investigated is strong, and that information was properly withheld for the same reasons described here.

7 embarrassment, and reputational damage . . . are not applicable in the context of every

government employee.” (cleaned up) (emphasis in original)).

When Exemption 7(C) is invoked, a FOIA requester must both “show that the public

interest sought to be advanced is a significant one” and that “the information is likely to advance

that interest.” Boyd v. Crim. Div. of U.S. Dep’t of Justice,

(D.C. Cir. 2007)

(citing Nat’l Archives & Records Admin. v. Favish,

(2004)). The Court

acknowledged in its prior opinion that the public may have an interest in “knowing whether the

federal government engaged in unconstitutional conduct in Plaintiff’s case.” Mem. Op. at 11–

12. This interest is underscored by Mr. Woodward’s status as a death row inmate, because “[t]he

fact that [an individual] has been sentenced to the ultimate punishment strengthens the public’s

interest in knowing whether the [agency’s] files contain information that could corroborate his

claim of innocence.” 4 Roth,

. The requestor in Roth asserted two public

interests: knowledge of whether the government had complied with its Brady obligations in that

requestor’s case, and the more general interest of “knowing whether the FBI is withholding

information that could corroborate a death-row inmate’s claim of innocence.”

.

Although the Circuit noted that the second interest was “broader” than the first and “substantial,”

it did not create a categorical rule for when either would require disclosure.

at 1177–78. To

the contrary, it considered both in its balancing analysis.

at 1176–79. The Court therefore

recognizes that there can be a significant public interest in information that would shed light on

the constitutionality of the conviction of a death-row defendant.

4 Mr. Woodward also points out that, while not material to this particular FOIA request, he has in fact continuously asserted and litigated his actual innocence of the murder. Pl.’s Opp’n & Cross-Mot. at 7, n.1.

8 However, disclosure of the withheld documents must somehow further the asserted

public interest. Favish,

. With the benefit of in camera review, the Court is able

to determine that the disclosure of the names and personal identifying information of the law

enforcement officers in this case would not further the public in understanding “what their

government is up to,” see Reps. Comm. for Freedom of Press,

, with respect to

this conviction or any other. Because disclosure of law enforcement official’s names would not

actually further the asserted public interest, it does not outweigh the privacy interests at stake.

Accordingly, the Court will grant summary judgment to the USMS with respect to the redaction

of the names and personal identifying information of law enforcement officers. 5

B. Exemption 7(E)

Woodward objects to the USMS’s invocation of Exemption 7(E) to withhold “references

to cell phone tracking technology. . . to the extent they exist.” Ex. 1 to Def.’s Reply & Opp’n

¶ 7; July 10, 2020 Joint Status Rep. at 2. Exemption 7(E) permits withholding of law

enforcement records “to the extent the production of such law enforcement records or

information . . . would disclose techniques and procedures for law enforcement investigations or

prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if

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

(b)(7)(E). Notably absent from this standard is the balancing of interests that was required

5 Woodward also challenges any withholdings under 7(C), to the extent that they occurred, “of references to cell phone tracking technology . . . and the involvement of specialists in such technology.” Ex. 1 of Pl.’s Opp’n ¶ 18b. It appears that to the extent the partially redacted information can be construed as relating to cell phone tracking technology, the USMS has asserted Exemption 7(E) over that information rather than 7(C). And because the Court has already determined that the USMS met its burden of withholding the names and contact information for law enforcement officers under Exemption 7(C), it need not consider the application of Exemption 7(F) to those withholdings.

9 for 7(C). “Exemption 7(E) sets a relatively low bar for the agency to justify withholding . . . [it]

only requires that the [agency] demonstrate logically how the release . . . might create a risk of

circumvention of the law.” Blackwell v. FBI,

(D.C. Cir. 2011) (quoting Mayer

Brown LLP v. IRS,

(D.C. Cir. 2009)).

Notwithstanding that low bar, “the agency must at least provide some explanation of what

procedures are involved and how they would be disclosed.” CREW,

(emphasis

in original). Exemption 7(E) does not exempt “routine techniques and procedures already well

known to the public.” Founding Church of Scientology of Washington, D. C., Inc. v. Nat’l Sec.

Agency,

, 832 n.67 (D.C. Cir. 1979); see also Davin v. U.S. Dep’t of Just.,

(3d Cir. 1995) (noting the same legislative intent to exclude “ballistics tests,

fingerprinting, and other scientific tests or commonly known techniques” (quoting H.R. Rep. No.

1200 (1974) (Conf. Rep.), as reprinted in 1974 U.S.C.C.A.N. 6285, 6291))). But it may protect

the “confidential details of programs if only their general contours are publicly known.” Elec.

Frontier Found. v. Dep’t of Just.,

(D.D.C. 2019) (cleaned up).

Beginning first with the partial redactions, the USMS asserted Exemption 7(E) to redact

case identifying numbers and other internal identifying codes, which the Court already found to

surpass the low bar of Exemption 7(E) in its prior opinion. Mem. Op. at 13. The Court remains

satisfied following in camera review that the USMS has done so appropriately and grants the

agency summary judgment with respect to case identifying numbers and internal codes.

In another partial withholding, found on pages 17, 28, 30, 32, 34, 63, 154, 155, 264, and

298, the USMS also labeled a single redaction as based on Exemption 7(D), which protects from

disclosure information that “could reasonably be expected to disclose the identity of a

confidential source.”

(b)(7)(D). The USMS has not so much as mentioned

10 Exemption 7(D), much less attempted to justify this withholding under it. In at least one

duplicate of one of those pages, though, the same redaction is instead labeled as a 7(E)

withholding. See June 14, 2019 Production (“Production”), Page 10.

The Court has determined from its in camera review that neither Exemptions 7(D) nor

7(E) support the redaction of this single phrase. Release would not disclose the identity of a

confidential source because the document does not identify one by name or even relationship;

rather, it only indicates that such a source existed. Nor would release “disclose techniques and

procedures for law enforcement investigations” in a way that “could reasonably be expected to

risk circumvention of the law.” See

(b)(7)(E). Again, the redacted phrase merely

indicates that one or more informants existed. Such information hardly creates a risk of future

circumvention of the law and was in fact mentioned in the Complaint and discussed in other

released portions of the same production. See Compl. ¶ 17 (“[T]he USMS had been notified via

anonymous tip that Mr. Woodward had been dropped off in Atlanta.”); Production, Page 151

(including the unredacted statement that “detectives conducted extensive interviews with a

number of informants that know Woodward”). The Court will therefore order disclosure of that

single phrase marked with Exemption 7(D) on pages 17, 28, 30, 32, 34, 63, 154, 155, 264, 298,

and the identical phrase labeled with Exemption 7(E) on page 10.

A more difficult question is the portion of pages 3–4, and duplicates thereof, which

redacts a section of the document labeled “telephonic data available for this fugitive,” followed

by a list of phone numbers. The USMS does not mention this specific redaction in either its

declaration or Vaughn Index. But there is not a strict method or form required for an agency to

meet its withholding burden under FOIA as long as the Court is able to adequately conduct a de

novo review. Jud. Watch, Inc. v. Food & Drug Admin.,

(D.C. Cir. 2006)

11 (observing that an agency may satisfy its burden through a combination of declarations, in

camera review, or indexes so long as the “measure will adequately aid a court” in evaluating the

exemption). Some of the more general statements in the Declaration seem to extend to this

information. See Luckstone Supp. Dec. ¶ 13 (“[T]his information could divulge who law

enforcement investigated in connection to the Plaintiff for apprehension purposes.”); id. ¶ 17 (“If

a fugitive knows specific details regarding how the USMS investigates fugitives, that fugitive

could modify his or her actions to evade law enforcement apprehension efforts.”). Most

importantly here, the Court has the benefit of evaluating the unredacted information in camera.

The Court finds that the USMS properly withheld some—but not all—of this particular

section of pages 3–4. The list of specific phone numbers could provide insight on law

enforcement investigation techniques that satisfy the standard of Exemption 7(E) and was

therefore properly redacted. But the mere fact that telephonic data was collected does not merit

redaction. Perhaps in 2006 such a technique might not have been “well known to the public,”

Founding Church of Scientology,

n.67, but in 2022 it is safe to say that the

potential for phones to double as tracking devices is common knowledge, see Carpenter v.

United States,

(2018) (“Only the few without cell phones could escape this

tireless and absolute surveillance.”); Pl.’s Opp’n & Cross-Mot. at 28 (collecting examples of

public reporting of cell-phone tracking technology). Because the “general contours” of cell data

tracking is “publicly known,” the USMS cannot redact the section of the document indicating its

existence, but it may redact the “confidential details” of what was tracked, specifically, the

numbers that were investigated. See Sussman v. U.S. Marshals Serv.,

(D.C.

Cir. 2007).

12 Although this was a redacted section within a partially released document, the USMS was

overly zealous with how much was redacted, even though a non-exempt portion of that section

(the label) was reasonably segregable. See

(b) (“Any reasonably segregable

portion of a record shall be provided . . . after deletion of the portions which are exempt . . . .”

(emphasis added)). Given that this document has already been released in part, the Court does

not believe the difficulty in releasing this additional line would create an unreasonable burden,

nor does its relatively brief nature render it “meaningless” in the context of the document; much

to the contrary, it is highly relevant to the request. See Mead Data Cent., Inc. v. U.S. Dep’t of

Air Force,

(D.C. Cir. 1977) (noting that information might not be “reasonably

segregable” where “the cost of line-by-line analysis would be high and the result would be an

essentially meaningless set of words and phrases”).

By redacting even the label on this section of the document, the USMS has effectively

attempted to accomplish through redaction what an agency would normally do through a Glomar

response—refusing to admit or deny the existence of responsive records. “An agency may issue

a Glomar response when to answer the FOIA inquiry would cause harm cognizable under an

applicable statutory exemption,” but in that situation it is the agency’s burden to “demonstrate

that acknowledging the mere existence of responsive records would disclose exempt

information.” Elec. Privacy Info. Ctr. v. NSA,

(D.C. Cir. 2012) (quoting Wolf

v. CIA,

(D.C. Cir. 2007)). That burden has not been met here. Cf. Reps.

Comm. for Freedom of Press v. FBI,

(D.D.C. 2019) (an agency’s

Glomar response declining to acknowledge the existence of records relating to a publicly known

investigation technique was not justified under Exemption 7(E)). Summary judgment will

13 therefore be granted in part to Mr. Woodward on the non-exempt portions of pages 3–4, more

specifically, the label of that subsection.

For the same reasons, the USMS improperly redacted the name of a specific sub-unit that

assisted with the investigation on pages 10, 17, 28, 30, 32, 34, 63, 154, 155, 264, and 298 under

Exemption 7(E). 6 The mere mention of this unit does not disclose any “confidential details” of

its operation, see Elec. Frontier Found.,

, and the existence and general

functions of the different components of the USMS are public knowledge, see, e.g., Dep’t of

Justice, Organization, Mission, and Functions Manual: U.S. Marshals Service, https://www.

justice.gov/jmd/organization-mission-and-functions-manual-united-states-marshals-service. The

USMS fails to meet its burden in showing how the disclosure of this single reference to one unit

in a discrete investigation fifteen years ago “could reasonably be expected to risk circumvention

of the law.” See

(b)(7)(E). Accordingly, summary judgment will be granted for

Mr. Woodward with respect to the name of the USMS sub-unit on pages 10, 17, 28, 30, 32, 34,

63, 154, 155, 264, and 298.

C. Documents withheld in full

Finally, Mr. Woodward objects to “[t]he USMS’ withholding of the entirety of pages 23,

38, 40, 41-53, and 72-137 of its production.” Ex. 1 of Pl.’s Opp’n ¶ 18c. The Court will discuss

each in turn.

6 On three of these pages, the redaction for this phrase is merely labeled “(b)(7).” Production, Pages 154, 264, 298. Because those pages are duplicates and the other pages labeled the redaction as Exemption 7(E), the Court assumes that the USMS intended to assert Exemption 7(E) over this phrase on all pages.

14 a. Page 23

This document is a one-page printout from a non-public USMS database. See Ex. A of

Def.’s Mot. (“2d Vaughn Index”) at 3, ECF No. 40-4. It consists of four columns, which identify

“the specific law enforcement personnel from a specialized group tasked with investigating the

Plaintiff,” “an internal identifying number that identifies the law enforcement officer in the

USMS database,” “the start date of investigations pertaining to third party individuals,” “internal

codes, specific to a USMS database, which are acronyms representing identifiable investigatory

actions taken by law enforcement personnel,” and “information pertaining to third parties who

were investigated in connection with the Plaintiff for apprehension purposes.”

The USMS

justified this withholding under Exemption 7(E), stating that “[h]ow law enforcement officers are

identified in certain databases, which law enforcement officers are assigned to certain

investigations, and the specific database utilized to document an investigation, consist of, and

reveal, law enforcement techniques and procedures that are not commonly known” and that

“[w]ere the third-parties’ association with the Plaintiff released, it could show what types of

associates law enforcement would investigate in future fugitive cases, revealing law

enforcement’s collection of information or evidence and operational strategies.”

at 3–4.

This explanation, in combination with the Court’s in camera review, is sufficient to meet

the agency’s burden of withholding this page under Exemption 7(E). 7 This page contains

“confidential details” rather than “general contours” of the investigative procedures used that are

not public knowledge, and the agency has given a sufficient explanation for how that information

could jeopardize future investigations. See Sussman,

. Moreover, the Court is

7 Because the Court determines that the USMS properly withheld this document in full under 7(E), it need not consider any other potential exemptions.

15 satisfied that the “non-exempt portions” of this document are “inextricably intertwined with

exempt portions” such that segregability is not required. See Mead Data Cent.,

.

Summary judgment is therefore granted to the USMS with respect to page 23.

b. Pages 38 and 40

Pages 38 and 40 are both “one-page fax cover sheet[s]” requesting information from “an

organization external to the USMS.” 2d Vaughn Index at 5–6. These two pages, and duplicates

thereof, were withheld in full under Exemptions 7(C) and 7(E), and page 38 was also withheld in

full under Exemption 7(F). Although some of the information on these two pages was properly

withheld under Exemption 7(C), the Court determines from its in camera review that most of the

document was reasonably segregable and must be released.

As the Vaughn Index notes, both pages “identif[y] the specific investigator engaged in the

investigation.”

The name and contact information of the investigating officer, as well as

third party phone numbers, may be properly redacted under Exemption 7(C) from those

documents for the reasons described above. However, the USMS also withheld the name of the

external organization that sent or received those faxes, specifically, a phone company. See

Production, Pages 38, 40. “[T[he concept of personal privacy under Exemption 7(C) is not some

limited or ‘cramped notion’ of that idea.” Favish,

. But the privacy interest must

still be “personal.”

(b)(7)(C). The Supreme Court has held in no uncertain terms

that “[t]he protection in FOIA against disclosure of law enforcement information on the ground

that it would constitute an unwarranted invasion of personal privacy does not extend to

corporations.” FCC v. AT&T Inc.,

, 409–10 (2011). Accordingly, there is no

“personal privacy” right at stake for the name of corporate entity that was redacted or the

message. Exemption 7(C) simply has no relevance here.

16 Of course, redaction under 7(E) might have been appropriate even if redaction under 7(C)

was not. The USMS has expanded on its original 7(E) justification for this withholding, now

saying that:

USMS sought records and information from this entity in connection with the Agency’s effort to apprehend Plaintiff. A law enforcement officer evaluated an operational mission and made an assessment regarding which external entity(ies) should be contacted in connection with achieving an operational goal. Additionally, the officer determined when during the operational mission that contact would be beneficial to the investigation’s objective . . . . On their face, records pertaining to the external entities USMS contacts in furtherance of operational efforts identify law enforcement techniques and procedures that are not commonly known. Disclosure of specific law enforcement techniques and procedures could enable people seeking to violate or circumvent the law to take proactive steps to counter operational and investigative actions taken by USMS during enforcement operations. If a fugitive knows specific details regarding how the USMS investigates fugitives, what information it finds beneficial to that effort, and from which external entities it derives records and assistance, that fugitive could modify his or her actions to evade law enforcement apprehension efforts. Such action would place law enforcement officers, as well as the public, in increased danger.

2d Vaughn Index at 5–6. 8

The Court is hard-pressed to see how releasing this document risks circumvention of the

law. See Prop. of the People, Inc. v. Dep’t of Just.,

, 28 (D.D.C. 2021)

(ordering disclosure of surveillance logs after an in camera review that “[found] nothing that bad

actors could make use of”). The company at issue is a phone company. Page 40 requests data

for a specific phone number from that company, and page 38 confirms the company’s response.

Production, Pages 38, 40. The USMS’s assertion that disclosing the name or even the broad

generalities of the request would educate potential fugitives on avoiding apprehension strains

credibility. As discussed above, collection of cell phone data from third-party companies is

8 Although the Vaughn Index does not specifically mention it, page 38 does include an internal file number that would also be appropriately redacted under 7(E), as described above.

17 already a known law enforcement tactic, whose procedures are in fact detailed by statute. See

Carpenter,

(discussing the Stored Communications Act). Disclosing the mere

use of that tactic in a single case over a decade ago would not “reduce or nullify the technique’s

effectiveness,” or “change [the] calculus . . . in [a] criminal’s decision as to what to do.” Reps.

Comm. for Freedom of Press v. FBI,

. The USMS’s conclusory assertions

do not convince the Court otherwise.

Finally, Exemption 7(F) protects from disclosure information contained in law

enforcement records that “could reasonably be expected to endanger the life or physical safety of

any individual.”

(b)(7)(F). That “broad” language “does not require that a

particular kind of individual be at risk of harm; ‘any individual’ will do.” Public Emps. for Env’t

Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n,

(D.C. Cir.

2014). The agency need not establish a definite risk, rather, “a reasonable expectation of

endangerment suffices.”

The USMS only invoked Exemption 7(F) for page 38, which

confirmed that the phone company had provided the requested documents. 9

The USMS’s justification for withholding the information under 7(F) is predicated on its

invocation of 7(E): “If a fugitive knows specific details regarding how the USMS investigates

fugitives . . . that fugitive could modify his or her actions to evade law enforcement apprehension

efforts” thereby “plac[ing] law enforcement officers, as well as the public, in increased danger.”

Ex. 4 of Def.’s Mot. at 5–6. The Court has already determined that the USMS failed to meet its

burden of showing how disclosure of the company name and message would reveal such

9 Because the Court has already determined that USMS may permissibly redact the name and contact information of the investigating officer under 7(C), it need not determine whether 7(F) would have also protected that information.

18 “specific details” that risk circumvention of the law. The next step of its argument therefore

necessarily fails as well.

Having determined that the USMS has not met its burden of withholding the company

name and message under Exemptions 7(C), 7(E), or 7(F), the Court will grant Mr. Woodward’s

motion in part with respect to pages 38 and 40. However, the USMS may redact the names and

contact information for the law enforcement officers, case identifying numbers, and third party

telephone numbers within those documents.

c. Page 41

“[P]age 41 is a printout obtained from an entity external to the USMS pertaining to a

third party individual,” which “contains that individual’s name, address, driver’s license number,

and email address” and “is labeled ‘proprietary and confidential.’” 2d Vaughn Index at 10. The

USMS asserts that disclosure of this document would “signal[] the types of information law

enforcement gathers and exploits to apprehend fugitives” that “are not commonly known.”

The Court agrees that USMS has cleared the “low bar” set by Exemption 7(E) with respect to

this page. Blackwell,

. Moreover, because the information as a whole could

collectively reveal law enforcement investigation techniques even with the otherwise personal

information redacted, the Court is satisfied from its own review that this document does not

contain any reasonably segregable portions. Summary judgment is therefore granted to the

USMS with respect to page 41.

d. Pages 42–43

Pages 42–43 contain “handwritten, law enforcement officer notes pertaining to multiple

third-party individuals.” 1st Vaughn Index at 11. The USMS asserted Exemptions 6, 7(C), 7(F),

and 7(E) over these pages in its prior motion. Although the supplemental Vaughn Index omits

19 mention of these specific pages, the Court finds based on a combination of the original

justification and its in camera review that withholding of these two pages was justified under

Exemption 7(C).

Both pages contain names, phone numbers, addresses, and emails, which implicate a

strong personal privacy interest. See Roth,

(recognizing that “the very mention

of an individual’s name” in law enforcement records may “engender comment and speculation

and carries a stigmatizing connotation”). Moreover, although there may be some public interest

in the integrity of an investigation such as this one, which resulted in Mr. Woodward’s death

sentence, the specific information found on these two pages would not likely “advance that

interest.” Favish,

. In Roth, the Circuit recognized that “the public might well

have a significant interest in knowing whether the federal government engaged in

[unconstitutional conduct] in a capital case,” but that interest did not override the privacy

interests at stake where an in camera review eliminated any concern of “government

misconduct.” Roth,

. The same is true here, as the Court is satisfied from its

own review of the documents that these two pages contain only lawfully collected investigative

notes. Moreover, because both pages are almost entirely made up of this personal information,

any potential segregation would “produce an edited document with little informational value”

and is not required. Mays v. Drug Enf’t Admin.,

(D.C. Cir. 2000) (quoting

Neufeld v. IRS,

(D.C. Cir. 1981)). 10 Accordingly, the Court grants summary

judgment to the USMS with respect to pages 42–43.

10 Because the entirety of these two pages was properly withheld under Exemption 7(C), the Court need not address the other asserted exemptions.

20 e. Pages 44-53

These pages are printouts from non-public law enforcement databases, some state-owned

and some that are maintained by the USMS. 2d Vaughn Index at 12–13. 11 Each page contains

information relating to individuals other than Mr. Woodward.

All the printouts contain

personal identifying information that implicates strong privacy interests, including names, mug

shots, social security numbers, criminal history, addresses, and vehicle information. The

disclosure of that information would not further a public benefit under FOIA for the same

reasons discussed above. Accordingly, the USMS has satisfied its burden of withholding that

information under 7(C).

Segregability presents a trickier question for this set of documents, however, since much

of the exempt personal identifying information could be redacted. Mr. Woodward correctly

points out that “the agency bears the burden of showing either that all information within the

document is exempt, or that its non-exempt content cannot be disentangled from exempt

material.” Pl.’s Opp’n at 22; see also Wilderness Soc. v. U.S. Dep’t of Interior,

(D.D.C. 2004) (“As always, it is incumbent on the agency to prove that no segregable

information exists.” (emphasis in original)). The USMS’s only attempt to meet this burden is a

blanket statement in the first Luckstone declaration that “line-by-line review was conducted to

identify information exempt from disclosure.” Luckstone Dec. ¶ 31. That indeed falls short of

the agency’s burden for this group of documents that were withheld in full.

However, the USMS also asserted Exemption 7(E) over these documents, arguing that

11 Neither Index describes page 53, but it is another printout of substantially similar information, and the same analysis applies.

21 they “contain information on individuals who law enforcement believed were linked to Plaintiff

(including detailed criminal history information, which was analyzed by law enforcement in

furtherance of apprehension efforts)” and that they “evidence[] the types of individuals law

enforcement may investigate in connection with apprehension efforts for an individual wanted

for homicide” that could in turn allow future fugitives to “decipher the relationship links law

enforcement looks for . . . and modify their actions accordingly to prevent capture.” 2d Vaughn

Index at 12–13.

Much of the remaining information on these pages is case identifying numbers and other

internal identifying codes, which the Court has already determined was permissibly redacted

under Exemption 7(E). See Mem. Op. at 13; supra at 11. And although Mr. Woodward is

correct that it is generally public knowledge “that law enforcement maintains databases that

contain information of this type,” Pl.’s Opp’n at 19, the Court is persuaded by the combination of

the USMS’s justification and its own review of the printouts that the collective detail maintained

in the database may be more than the sum of its parts. Other courts have accepted similar

reasoning that “[k]nowing what information is collected, how it is collected, and more

importantly, when it is not collected, is information that law enforcement might reasonably

expect to lead would-be offenders to evade detection.” Soghoian v. U.S. Dep’t of Just.,

(D.D.C. 2012). Accordingly, much of the non-personal information maintained

in the database is also permissibly withheld under Exemption 7(E).

Once all the information that is permissibly withheld under 7(C) or 7(E) is redacted, all

that would be left is “an essentially meaningless set of words and phrases.” Mead Data Cent.,

. Therefore, the Court holds that these documents were not reasonably

segregable and grants summary judgment to the USMS for this page range.

22 f. Pages 71–127 12

The USMS categorically describes this page range as containing “fax cover sheets

requesting documentation and information from third parties, in connection with a law

enforcement investigation of the Plaintiff.” 2d Vaughn Index at 16. At the outset, the Court

notes that while there are a few fax cover sheets within that page range, most of the pages are

actually attachments to those faxes. Specifically, the attachments consist of court orders and

supporting documentation ordering phone companies to release requested information on certain

phone numbers.

Complicating matters, the court orders and supporting documentation were filed under

seal. “[R]ecords covered by an injunction, protective order, or held under court seal are not

subject to disclosure under FOIA.” Senate of Com. of P.R. v. U.S. Dep’t of Just., No. 84-cv-

1829,

, at *6 (D.D.C. Aug. 24, 1993) (citing GTE Sylvania, Inc. v. Consumers

Union of the U.S., Inc.,

, 386–87 (1980)). But the mere existence of a sealing order

does not necessarily mean that an agency record is exempt under FOIA; rather, “the proper test

for determining whether an agency improperly withholds records under seal is whether the seal,

like an injunction, prohibits the agency from disclosing the records.” Morgan v. U.S. Dep’t of

Just.,

(D.C. Cir. 1991); see also Concepcion v. F.B.I.,

(D.D.C. 2010) (denying summary judgment to an agency who had failed to meet its burden

of showing that a sealing order prohibited disclosure of a draft affidavit).

12 Plaintiffs challenged the page range 72–127, but the Vaughn Index groups page 71 with this range as well. Given that page 71 is substantially similar to other pages within this range, the Court includes page 71 in its analysis as well.

23 The documents at issue, while they were at one point filed under seal, 13 are in the

USMS’s possession and are undeniably responsive to the request. It is therefore the USMS’s

burden to show that the court’s sealing order in fact functions as a ban on the voluntary release of

these materials. See Morgan,

(“DOJ will have the burden of demonstrating that

the court issued the seal with the intent to prohibit the DOJ from disclosing the notes as long as

the seal remains in effect.”); Senate of Com. of P.R.,

, at *7 (“The Defendants

have the burden of showing the existence of the court seal, that the documents are subject to the

court order, and that the court issued the seal with the intent to prohibit the Defendants from

disclosing the documents as long as the seal remains in effect.”). That burden must be met for

each of the withheld documents, meaning not only the court orders but also the supporting

documentation, application, and faxes.

The USMS has not even acknowledged that the withheld documents related to a sealed

matter, much less attempted to meet that burden. Rather, it withheld the documents in full based

on 7(E) and provided only a vague and incomplete description of their contents, effectively

attempting a Glomar response that declined to answer whether there was information about the

use of cell phone tracking technology at all—even though that was the primary focus of the

request. See Ex. A of Compl., ECF No. 1-1 (requesting “[a]ll records in any way relating to,

pertaining to, or mentioning the use of any cell phone tracking technology during the

investigation of the shooting death of Officer Keith Houts”).

13 This Circuit has held that similar electronic surveillance orders, and the accompanying applications, documentation, and dockets, are judicial records that carry a presumption of public access. In re Leopold to Unseal Certain Elec. Surveillance Applications & Ords.,

(D.C. Cir. 2020). This District is currently undergoing the process of unsealing all such electronic surveillance orders from this District, “in redacted form as appropriate.” Matter of Leopold, No. 20-mc-95,

, at *7 (D.D.C. Dec. 10, 2020).

24 An actual Glomar response would have been inappropriate here for reasons already

explained. The general concept of cell phone data collection and tracking is already “well

known to the public,” Founding Church of Scientology,

n.67, and the specific

types of information that may be collected and the standards by which they may be released have

in fact been the focus of a great deal of public and judicial attention, see Carpenter, 138 S. Ct. at

2211–12; In re Leopold to Unseal Certain Elec. Surveillance Applications & Ords.,

(D.C. Cir. 2020). 14 There is therefore no risk of future circumvention of the law

inherent in revealing the fact that the USMS sought and obtained court orders for certain cell

phone records in the course of investigating Mr. Woodward. That information would not in any

way “reduce or nullify” the effectiveness of obtaining such information by court order given that

the availability of that technique is already well-known. Reps. Comm. for Freedom of Press v.

FBI,

.

It is also not clear to the Court from its in camera review of the documents that the

USMS is actually prohibited from releasing this information. Each of the Orders contains nearly

identical language sealing the case and prohibiting the phone company and its employees from

disclosing the existence of the order or the investigation, but there is no similar prohibition

directed toward the government. See Production, Pages 75, 78, 82, 84, 87, 90, 103, 107, 122. In

addition, the government’s rationale for requesting sealing in the applications was that disclosure

would jeopardize the ongoing investigation, see Production, Pages 93, 98, 110, 115, 125, which

is obviously no longer a concern at this point.

14 Of course, this is a FOIA case, not a Fourth Amendment one. The Court need not, and does not, reach any conclusions about the constitutionality of the USMS’s actions in the course of apprehending Mr. Woodward.

25 This Circuit has “discouraged serial summary judgment motions after the government’s

first loss.” Evans v. Fed. Bureau of Prisons,

, 587 (D.C. Cir. 2020). However, out

of an abundance of caution and respect for the judicial process of another district court, the Court

will permit the USMS a third and final chance to meet its burden with respect to these

documents, by providing additional evidence “such as transcripts and papers filed with the

sealing court, casting light on the factors that motivated the court to impose the seal; . . . sealing

orders of the same court in similar cases that explain the purpose for the imposition of the seals;

or . . . the [sealing] court’s general rules or procedures governing the imposition of seals.”

Morgan,

. If the USMS does not wish to assert that the seal on this 15-year-old

case prohibits disclosure, it should conduct a line by line segregability analysis of this page range

and release any non-exempt portions thereof. 15

g. Pages 128–137

Pages 128–137 are printouts of USMS database, similar to the printouts discussed in the

44–53 page range. 2d Vaughn Index at 17. It includes “internal law enforcement identifying

numbers, alias information, fingerprint information, detailed criminal history analysis, data

indicating law enforcement queries of an internal, nonpublic system, extradition information, and

assessment regarding the danger an individual may pose to law enforcement and the public.” Id.

at 18. But unlike the previous printouts, which contained third party information, these printouts

contain information about Mr. Woodward.

15 The Court acknowledges that this page range contains some information that could be permissibly redacted under the asserted FOIA exemptions. But the agency has not fulfilled its obligation to provide all reasonably segregable information with respect to this page range. See

(b) (“Any reasonably segregable portion of a record shall be provided . . . after deletion of the portions which are exempt . . . .”).

26 The Court must therefore determine whether these documents were properly withheld in

full under Exemption 7(E). At least some of the information, such as internal law enforcement

identifying numbers, was properly withheld for the same reasons in these documents as in others.

Similarly, references to other databases that were queried or the section on risk evaluation on

page 137 are demonstrative of investigation techniques that might, at least indirectly, increase

the risk that would-be fugitives “evade detection and capture.” Id. at 18. “In evaluating whether

Defendants have carried their burden of showing a risk of circumvention of the law, the court is

fully cognizant of the low bar that the Court of Appeals has set for establishing such risk.” Long

v. Immigr. & Customs Enf’t,

(D.D.C. 2015). Although the Court harbors

some skepticism of the USMS’s concerns, the FOIA statute only requires that the Agency show

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

(b)(7)(E). At least for the information described thus far, the combination of the Vaughn

Index and in camera review satisfy that low burden.

But the USMS again runs into a segregability issue. Even though certain portions of the

printouts might risk future circumvention of the law, the Court is not persuaded for this page

range that nothing was reasonably segregable. The USMS’s previous concerns about disclosure

allowing for inferences about the types of relationships that are investigated is nonexistent here,

as all the documents relate to Mr. Woodward. And the USMS lists right in its Vaughn Index

several categories of information that are included in the printouts: “alias information, fingerprint

information, [and] detailed criminal history analysis.” 2d Vaughn Index at 18. The USMS has

done nothing to establish why the collection of that type of information is “not generally known

to the public” or assess “the way(s) in which individuals could possibly circumvent the law” if

that information relating to Mr. Woodward were released. See Am. Immigr. Council v. U.S.

27 Dep’t of Homeland Sec.,

(D.D.C. 2013). Nor is it clear to the Court

even after in camera review that everything in these pages is wholly exempt.

Accordingly, the USMS will be ordered to conduct a line-by-line segregability analysis

for pages 128–137 and release any non-exempt information consistent with the reasoning in this

opinion. Because the parties will need to renew their cross-motions for summary judgment with

respect to the previous page range in any event, any unresolved challenges to that redaction may

be raised at that time as well.

V. CONCLUSION

For the foregoing reasons, Defendant’s renewed motion for summary judgment (ECF No.

40) is granted in part and denied in part and Plaintiff’s renewed cross-motion for summary

judgment (ECF No. 43) is granted in part and denied in part as described herein. With respect to

the pages 71–137, the Court will deny summary judgment to either party and order the parties to

submit a Joint Status Report two weeks after the additional ordered actions have been taken,

advising the Court of whether any outstanding issues remain in this case. An order consistent

with this Memorandum Opinion is separately and contemporaneously issued.

Dated: February 1, 2022 RUDOLPH CONTRERAS United States District Judge

28