UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANDRES F. CABEZAS,

Plaintiff,

v. Civil Action No. 1:19-cv-145 (CJN)

FEDERAL BUREAU OF INVESTIGATION,

Defendant.

MEMORANDUM OPINION

In response to an ad posted by law enforcement, Andres Cabezas communicated with

someone he believed to be a 12-year-old child and described in explicit detail the sexual acts he

intended to perform on the child. See United States v. Cabezas, No. 617CR148ORL40TBS,

, at *1 n.1 (M.D. Fla. Dec. 20, 2017). Cabezas later pleaded guilty to receipt of child

pornography in violation of 18 U.S.C. § 2252A(a)(2). He has now filed this lawsuit seeking

records relating to his investigation, prosecution, conviction, and sentencing. See generally

Compl., ECF No. 1. The Bureau has moved for summary judgment on the grounds that it

conducted an adequate search, withheld information for legitimate reasons, and satisfied its

segregability obligations. See FBI’s Mot. for Summ. J. (“FBI’s Mot.”), ECF No. 37. Cabezas has

filed a cross-motion for summary judgment on the grounds that the Bureau conducted an

unreasonable search and failed to discharge its duties under the Privacy Act, 5 U.S.C. § 552a, et

seq., and the Freedom of Information Act,

et seq. See Cabezas’ Cross-Mot. for

Summ. J. (“Cabezas’ Cross-Mot.”), ECF No. 43. For the reasons that follow, the Court grants the

Bureau’s motion for summary judgment and denies Cabezas’ cross-motion for summary judgment.

1 I. Legal Standards Applicable to the Freedom of Information Act

FOIA requires “federal agencies to make their records available to the public upon

request.” DiBacco v. U.S. Army,

(D.C. Cir. 2015); see

(a)(3).

An agency must conduct a reasonable search for responsive records. Oglesby v. Dep’t of Army,

(D.C. Cir. 1990). But agencies may withhold from disclosure information that

falls within one of nine enumerated exemptions. See United States Fish & Wildlife Serv. v. Sierra

Club, Inc.,

, 785 (2021); see

(b). Those nine “exemptions are

explicitly made exclusive and must be narrowly construed.” Milner v. Dep’t of Navy,

, 565 (2011). Furthermore, as of 2016, an agency may only withhold information under an

exemption if the agency “reasonably foresees that disclosure would harm an interest protected by

[the] exemption” or if “disclosure is prohibited by law.” Reps. Comm. for Freedom of the Press

v. Fed. Bureau of Investigation,

, 357–58 (D.C. Cir. 2021) (quoting

(a)(8)(A)(i)). The agency carries the burden of proving the applicability of an exemption and

showing either a foreseeable risk of harm or that the law prohibits disclosure. See Petroleum Info.

Corp. v. Department of the Interior,

(D.C. Cir. 1992); Elec. Privacy Info. Ctr.

v. U.S. Dep’t of Homeland Sec.,

(D.C. Cir. 2015) (quotation omitted) (noting

that district courts must review de novo the agency’s justification for non-disclosure).

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

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

(D.D.C. 2009). Summary judgment

is appropriate 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 dispute is

“genuine” only if “the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc.,

(1986). An agency may

attempt to meet its summary judgment burden through a declaration or an affidavit, but conclusory

2 declarations or affidavits “that merely recite statutory standards or are overly vague or sweeping”

will not suffice. Larson v. Dep’t of State,

(D.C. Cir. 2009).

In cases involving significant withholdings, agencies often provide a so-called Vaughn

index “to enable the court and the opposing party to understand the withheld information” and to

“address the merits of the claimed exemptions.” Jud. Watch, Inc. v. Food & Drug Admin.,

(D.C. Cir. 2006); see also Vaughn v. Rosen,

(D.C. Cir. 1973)

(originating the term “Vaughn index”). An adequate Vaughn index provides “a relatively detailed

justification, specifically identifying the reasons why a particular exemption is relevant and

correlating those claims with the particular part of a withheld document to which they apply.”

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

(D.C. Cir. 1977). The Vaughn

index, in other words, must “state the exemption claimed for each deletion or withheld document,

and explain why the exemption is relevant.” Founding Church of Scientology of Wash., D.C. v.

Bell,

(D.C. Cir. 1979).

Even where a record contains information exempt from disclosure, any “reasonably

segregable,” non-exempt information must be disclosed.

(b); see Porup v. Cent.

Intel. Agency,

(D.C. Cir. 2021) (quotation omitted) (“FOIA provides that any

reasonably segregable portion of a record shall be provided to any person requesting such record

after deletion of the portions which are exempt.”); see also Porup,

(“We have

held that a trial court must make a segregability finding if a federal agency has redacted or withheld

documents pursuant to FOIA exemptions.”). An “agency must provide a detailed justification”

for its determination that non-exempt materials cannot be segregated from exempt materials, but

the agency need not “provide so much detail that the exempt material would be effectively

disclosed.” Johnson v. Exec. Office for U.S. Attys.,

(D.C. Cir. 2002) (quotation

3 omitted); Mead Data Cent., Inc.,

(noting that a “document must be disclosed

unless they are inextricably intertwined with exempt portions”). “Agencies are entitled to a

presumption that they complied with the obligation to disclose reasonably segregable material.”

Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007).

II. Legal Standards Applicable to the Privacy Act

The Privacy Act mandates that each “agency that maintains a system of records shall . . .

upon request by any individual to gain access to his record or to any information pertaining to him

which is contained in the system, permit him . . . to review the record and have a copy made of all

or any portion thereof in a form comprehensible to him.” 5 U.S.C. § 552a(d)(1). The Privacy Act

also allows individuals to request notice that an agency’s system of records contains information

about them. See 5 U.S.C. §§ 552a(e)(4)(G), (f)(1).

FOIA and the Privacy Act are similar in some ways and different in others. Both statutes

provide “a requester with access to federal agency records about the requester and create a private

cause of action when an agency fails to comply with a valid request.” Carlborg v. Dep’t of the

Navy, No. 18-CV-1881 (DLF),

, at *3 (D.D.C. Aug. 10, 2020) (describing

further similarities). The Privacy Act, unlike FOIA, concerns itself with safeguarding “the public

from unwarranted collection, maintenance, use and dissemination of personal information

contained in agency records.” Bartel v. Fed. Aviation Admin.,

(D.C. Cir.

1984) (emphasis added). FOIA, by contrast, provides a means by which citizens may “pierce the

veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of

Air Force v. Rose,

(1976).

Given FOIA and the Privacy Act’s differences, where an individual requests documents

under both statutes, “the responding agency must demonstrate that the documents fall within some

exemption under each Act.” Kearns v. Fed. Aviation Admin.,

(D.D.C.

4 2018) (quotation omitted). Where a FOIA exemption covers a document, but

a Privacy Act exemption does not, the document must be released under the Privacy Act. See

Schneider v. U.S. Dep’t of Just.,

, 127 (D.D.C. 2020). On the flipside, where

a Privacy Act exemption covers a document, but a FOIA exemption does not, the document must

be released under FOIA.

III. Factual & Procedural Background

In 2017, Cabezas pleaded guilty to receipt of child pornography in violation of 18 U.S.C.

§ 2252A(a)(2). See Cabezas,

at *1. He received a 151-month sentence. See

United States v. Cabezas,

, 416 (11th Cir. 2019). Cabezas appealed both.

(explaining the basis of Cabezas’ appeal).

About a year into serving his sentence, and while his appeal remained pending, Cabezas

submitted a FOIA request to the Bureau, requesting information, data, and reports related to his

arrest and conviction. See Compl. ¶ 7. In June 2018, the Bureau sent Cabezas a letter

acknowledging his request. See Declaration of David M. Hardy, ECF No. 9-3 at ¶ 6. Cabezas

filed this lawsuit six months later. See Compl.

In his Complaint, Cabezas alleges that he never received a response and that the

“withholding of items sought amounts to a refusal to produce,” which violates his “statutory right

to receive” them under FOIA and the Privacy Act. Compl. ¶¶ 13–14. He seeks an order not only

enjoining the Bureau from continuing to withhold responsive records, but also compelling the

Bureau to “produce the requested records without further delay.”

While Cabezas’ appeal remained pending, the Bureau moved for summary judgment,

arguing in large part that FOIA Exemption 7(A) exempted material from disclosure because of the

appeal. See FBI’s First Mot. for Summ. J., ECF No. 9 at 17; Second Declaration of Michael G.

Seidel, (“2d Seidel Decl.”), ECF No. 37-3 at ¶¶ 2–3; see also

(b)(7)(A) (noting that

5 an agency need not make available information where “the production of such law enforcement

records or information (A) could reasonably be expected to interfere with enforcement

proceedings”).

Once Cabezas’ appeal ended, the Bureau withdrew its motion for summary judgment and

searched for responsive records. See 2d Seidel Decl. ¶ 4. The Bureau searched its file and case

management records system known as the Central Records System (or CRS for short). See 2d

Seidel Decl. ¶¶ 12–16. CRS “spans the entire FBI organization” and “is an extensive system of

records consisting of applicant, investigative, intelligence, personnel, administrative, and general

files compiled and maintained by the [Bureau] in the course of fulfilling its integrated missions

and functions as a law enforcement, counterterrorism, and intelligence agency.” Id.; Kolbusz v.

Fed. Bureau of Investigation, No. 117CV00319EGSGMH,

, at *9 n.15 (D.D.C.

Feb. 17, 2021) (providing details on what the CRS is and how it works). The Bureau released 176

pages in full, released in part 41 pages and 2 videos, and withheld in full 74 pages pursuant to

various FOIA exemptions and the Privacy Act.

It also provided Cabezas with a Vaughn Index.

See Vaughn Index, ECF No. 37-4, Ex. F at 26.

The Bureau then renewed its motion for summary judgment. See FBI’s Mot. It argues that

it conducted an adequate search and withheld information in compliance with the Privacy Act as

well as FOIA Exemptions 5, 6, 7(C) and 7(E). See generally

In particular, the Bureau claims

that it “conducted a comprehensive search of its CRS database using its associated indices” and

disclosed all disclosable, responsive material. FBI’s Mem. in Opp’n to Pl.’s Cross-Motion (“FBI’s

Opp’n”), ECF 51 at 2.

Cabezas cross-moved for summary judgment, contending that the Bureau conducted an

unreasonable search, and that it failed to discharge its duties in good faith under the Privacy Act

6 and FOIA. See Cabezas’ Cross-Mot. Generally speaking, Cabezas argues that the Bureau failed

to produce records he had earlier obtained through criminal discovery, which he claims casts doubt

on the thoroughness of the Bureau’s search.

In response to this argument, the Bureau

conducted a targeted search for material contained outside of CRS and made supplemental

disclosures as a result. See Third Declaration of Michael G. Seidel (“3d Seidel Decl.”), ECF No.

51-1 at ¶ 3.

IV. Adequacy of the Search

In responding to a FOIA request, an agency must conduct a reasonable search for

responsive records. Oglesby,

; Bigwood v. United States Dep’t of Def.,

(D.D.C. 2015) (“A court assesses the adequacy of the federal agency’s search for

responsive records by applying a reasonableness test.”). In most FOIA cases, “the agency

establishes the adequacy of its search by submitting a detailed and nonconclusory affidavit on a

motion for summary judgment.” In re Clinton,

(D.C. Cir. 2020). Such an

affidavit must explain “in reasonable detail the scope and method of the search conducted by the

agency” for the search to pass muster. Wolf v. CIA,

(D.D.C. 2008) (quoting

Perry v. Block,

(D.C. Cir. 1982)); Mobley v. C.I.A.,

(D.C.

Cir. 2015) (quotation omitted) (noting that “agency affidavits—so long as they are relatively

detailed and non-conclusory—are accorded a presumption of good faith, which cannot be rebutted

by purely speculative claims about the existence and discoverability of other documents”).

Here, Michael G. Seidel, the Section Chief for Record Dissemination for the Bureau, has

provided multiple declarations that explain the innerworkings of the Bureau’s document

management system and how the Bureau utilized that system to search for responsive records in

this case. See generally 2d Seidel Decl.; 3d Seidel Decl. In particular, Seidel states that the Bureau

directed its search efforts by searching the automated indices in CRS. See 2d Seidel Decl. ¶ 20.

7 Seidel further states that such a search offers “access to a comprehensive, agency-wide set of

indexed data on a wide variety of investigative and administrative subjects” and represents “the

most reasonable means for the [Bureau] to locate records potentially responsive to [FOIA]

requests.”

Seidel also states that the Bureau “employs an index search methodology,” and in

this case, the Bureau conducted a “string” search consisting of “Cabezas’ names: “Andres

Fernando Cabezas, Andres F. Cabezas, and Andres Cabezas” to locate responsive records. Id. ¶

24. As a result of the search, the Bureau released 176 pages in full, released in part 41 pages and

2 videos, and withheld in full 74 pages pursuant to various FOIA exemptions and the Privacy Act.

See id. ¶ 4.

The Bureau’s disclosures did not end there. In response to Cabezas’ cross-motion for

summary judgment, the Bureau conducted additional searches. See 3d Seidel Decl. ¶ 3. In

particular, the Bureau contacted a special agent in Florida who maintains Cabezas’ criminal file

and requested additional searches for material located outside of the database system. Id. Those

additional searches turned up audio recordings and photographs. Id. Indeed, even Cabezas

acknowledges “[t]o the [Bureau’s] credit” that it “at least tried to partially cure its prior deficient

search by expanding the s[earch] to the Tampa Field Office.” See Cabezas’ Reply to Opp’n to

Bureau’s Cross-Mot. for Summ. J. (“Cabezas’ Reply”), ECF No. 53 at 5.

The Court concludes that the Bureau conducted a reasonable search calculated to locate

records responsive to Cabezas’ request. The Bureau utilized CRS to search for records about

Cabezas. Given that Cabezas requested information about himself, it was reasonable to assume

that responsive material would be located there because CRS contains the Bureau’s “information

about individuals, organizations, events, and other subjects of investigative interest for future

retrieval.” Id. The Bureau also conducted supplemental searches for information about Cabezas,

8 which brought to light additional material. What’s more, Seidel’s second and third declarations

not only detail that the Bureau searched within the correct records management systems, but also

that the Bureau did so in a manner reasonably calculated to retrieve records responsive to Cabezas’

request. See generally 2d Seidel Decl.; 3d Seidel Decl. The Bureau conducted a reasonable and

an adequate search.

Cabezas argues that the Bureau’s initial search did not do enough to smoke out

“misconduct” on behalf of the Bureau when it came to his prosecution. See Cabezas’ Cross-Mot.

at 19. He contends that the “CRS search should only be a beginning, not an end, and in this case,

[and that the Bureau] has not indicated it completed more than a ‘targeted search’ for the missing

records.” Cabezas’ Reply at 10. And he supports this contention with the argument that the Bureau

failed to produce numerous records he obtained through criminal discovery. The Bureau, however,

responded to this argument by conducting targeted searches of the Bureau’s Tampa Field Office,

which led to additional disclosures. See 3d Seidel Decl. ¶ 3. What’s more, Cabezas appears to

equate requests made under FOIA and the Privacy Act with discovery in criminal and habeas

proceedings. But such requests do not serve as substitutes for discovery in criminal cases or in

habeas proceedings. See Roth v. U.S. Dep’t of Just.,

(D.C. Cir. 2011). The

U.S. Attorney’s Office has certain material and information that falls under its purview, which

agencies like the Bureau have little to no control over. See Coss v. U.S. Dep’t of Just.,

(D.D.C. 2015). All this leads to the conclusion that Cabezas’ assertion that the

Bureau did not conduct a reasonable search in good faith must fail because the Bureau’s initial

search and its supplemental searches were adequate under the law.

V. The Bureau’s Withholdings under the Privacy Act

Recall that FOIA and the Privacy Act share much in common. Yet differences do exist.

As a result, where a Privacy Act exemption covers a document, but a FOIA exemption does not,

9 the document must be released under FOIA. See Boyd v. Exec. Off. for United States Att’ys,

(D.D.C. 2015). The reverse holds true, too. Where a FOIA exemption covers a

document, but a Privacy Act exemption does not, the document must be released under

the Privacy Act.

Here, the Bureau has invoked Privacy Act Exemption (j)(2). See 5 U.S.C. § 552a(j)(2).

That exemption shields from disclosure systems of records “maintained by an agency or

component thereof which performs as its principal function any activity pertaining to the

enforcement of criminal law, including police efforts to prevent, control, or reduce crime or to

apprehend criminals.” Id. Agencies may promulgate rules to exempt search systems and indices

from disclosure requirements under the Privacy Act. See 5 U.S.C. § 552a(d), (j), (k). The

Department of Justice has promulgated regulation

(a)(1), which exempts the

Bureau’s law enforcement records maintained in CRS, Bolze v. Exec. Off. for United States Att’ys,

No. CV 17-2858 (FYP),

, at *2 n.4 (D.D.C. Nov. 29, 2021). Many courts have

therefore concluded that law enforcement records found in CRS are exempt from disclosure under

the Privacy Act. See Mobley v. C.I.A.,

(D.D.C. 2013); Marshall v. FBI,

(D.D.C. 2011) (holding that the “CRS records are exempt from disclosure

under the Privacy Act”).

The Court concludes that the Bureau has carried its burden with respect to its withholdings

under the Privacy Act. The records responsive to Cabezas’ request constitute law enforcement

records compiled in the course of the Bureau’s investigation of Cabezas’ receipt of child

pornography. Those records are shielded from disclosure under the Privacy Act pursuant to

(a)(1), and 5 U.S.C. § 552a(j)(2).

10 But just because the Privacy Act applies to shield material from disclosure does not answer

whether they must be produced pursuant to FOIA.

VI. The Bureau’s Withholdings under FOIA Exemption 5

FOIA’s Exemption 5 protects “inter-agency or intra-agency memorandums or letters that

would not be available by law to a party other than an agency in litigation with the agency.”

(b)(5). That Exemption “incorporates the privileges available to Government

agencies in civil litigation,” including, as relevant here, the deliberative process privilege and the

attorney-client privilege. See United States Fish & Wildlife Serv. V. Sierra Club, Inc.,

, 785 (2021).

A. The Deliberative Process Privilege

The deliberative process privilege “shields from disclosure documents reflecting advisory

opinions, recommendations, and deliberations comprising part of a process by which governmental

decisions and policies are formulated.”

(quotation omitted). The privilege seeks to facilitate

candid communication among public officials, as it “blunts the chilling effect that accompanies

the prospect of disclosure.” Id.; see also Department of the Interior v. Klamath Water Users

Protective Association,

, 8–9 (2001) (noting that the “privilege rests on the obvious

realization that officials will not communicate candidly among themselves if each remark is a

potential item of discovery and front page news”).

To qualify for the deliberative process privilege, the agency must demonstrate that the

material is (1) pre-decisional, (2) deliberative, and (3) that it is reasonably foreseeable that release

of the material would cause harm to an interest protected by that privilege. See Reps. Comm. for

Freedom of the Press,

; Abtew v. U.S. Dep’t of Homeland Sec.,

(D.C. Cir. 2015) (Kavanaugh, J.). A document counts as pre-decisional when it was “generated

before the agency’s final decision on the matter,” “as opposed to documents that embody or explain

11 a policy that the agency adopts.” United States Fish & Wildlife Serv., 141 S. Ct. at 786 (noting that

the key “is not whether a document is last in line, but whether it communicates a policy on which

the agency has settled”). A document counts as “deliberative” when it was “prepared to help the

agency formulate its position.” Id.; Reps. Comm. for Freedom of the Press,

(describing deliberative documents as those involving the “type of back-and-forth exchange of

ideas, constructive feedback, and internal debate over how best to promote and to preserve the

undercover policy that sits at the heart of the deliberative process privilege”). And it is reasonably

foreseeable that the release of the material would cause harm to an interest protected by that

privilege when the agency “concretely explains how disclosure would—not could—adversely

impair internal deliberations.” Reps. Comm. for Freedom of the Press, 3 F.4th at 369–70. That

showing turns on “a focused and concrete demonstration of why disclosure of the particular type

of material at issue will, in the specific context of the agency action at issue, actually impede those

same agency deliberations going forward.”

The Bureau has invoked the deliberative process privilege to protect information “related

to inter-agency deliberations.” 2d Seidel Decl. ¶ 37. In particular, the withheld material includes

suggestions regarding the Bureau’s “operational strategies, as well as . . . communications with an

Assistant United States Attorney who was consulted and provided advice regarding investigative

strategy related to Cabezas’ case.”

The Bureau has sufficiently demonstrated that the withheld material is both pre-decisional

and deliberative. As reflected in the Seidel declarations, the withheld material involved portions

of operational plans and investigative suggestions.

That material is “pre-decisional in that it

does not reflect final agency decisions.”

What’s more, “the investigative suggestions offered

in the operational plan were memorialized prior to agency action in the official operation and do

12 not necessarily reflect final operational decisions.”

In other words, the operational plans “were

contingent on predicted scenarios that were only speculated to potentially occur.” 3d Seidel Decl.

¶ 18. The Court concludes that the material withheld pursuant to the deliberative process privilege

was both pre-decisional and deliberative.

But that does not end the matter. In addition to having to show that the material is pre-

decisional and deliberative, the Bureau must also show that it is reasonably foreseeable that release

of the withheld material would cause harm to an interest protected by the privilege. Reps. Comm.

for Freedom of the Press, 3 F.4th at 369–70. To do so, the Bureau must explain “how disclosure

would—not could—adversely impair internal deliberations,” which turns on “a focused and

concrete demonstration of why disclosure of the particular type of material at issue will, in the

specific context of the agency action at issue, actually impede those same agency deliberations

going forward.”

The Bureau has demonstrated that harm is reasonably foreseeable in that release of the

withheld material would cast a chilling effect on the willingness of employees to share raw,

unrefined ideas and candid feedback should they know it could become subject to public

disclosure. See 2d Seidel Decl. ¶ 37. In particular, release of the withheld material would harm

future Bureau investigations by exposing the Bureau’s “internal investigative plans and strategies.”

Release could also “result in hesitancy [among Bureau employees to] participate fully in

[future] deliberations.”

What’s more, release of such material could create confusion between

what counts as a final Bureau decision, which could cast doubt on the actual of the Bureau’s

findings.

Cabezas pushes back, contending that the withheld material under the deliberative process

privilege constituted a final decision and thus cannot be characterized as pre-decisional. See

13 Cabezas’ Cross-Mot. at 24. In particular, Cabezas argues that the operational plan received final

approval and thus cannot be deemed pre-decisional.

The Bureau, however, drafted the plan

“in anticipation of a specific operation,” which makes its pre-decisional. 3d Seidel Decl. ¶ 18;

Heggestad v. U.S. Dep’t of Just.,

(D.D.C. 2000). But if that were not enough,

the Bureau withheld only “portions of the operational plan” containing “legal analysis of the

validity of the [Bureau’s] actions within [Cabezas’] criminal case.” 3d Seidel Decl. ¶ 18.

B. The Attorney-Client Privilege

The attorney-client privilege aims “to encourage full and frank communication between

attorneys and their clients and thereby promote broader public interests in the observance of law

and administration of justice.” United States v. Jicarilla Apache Nation,

, 169–170

(2011) (quotation omitted). To establish that the attorney-client privilege applies in the FOIA

context, an agency must show that (1) “the information in [the] documents was communicated to

or by an attorney as part of a professional relationship,” (2) “the information is confidential,” and

(3) the “communication is based on confidential information provided by the client.” Mead Data

Cent., Inc., 566 F.2d at 253–54; Pub. Citizen, Inc. v. United States Dep’t of Educ.,

(D.D.C. 2019) (noting that the privilege must also be claimed and not waived by the

client). “In the FOIA context, the agency is the ‘client’ and the agency’s lawyers are the ‘attorneys’

for the purposes of attorney-client privilege.” Judicial Watch, Inc. v. U.S. Dep’t of Treasury,

(D.D.C. 2011).

The Bureau has invoked the attorney-client privilege “to protect privileged

communications between its investigators and the Department of Justice.” FBI’s Mot. at 21. In

particular, the Bureau asserted attorney-client privilege to protect confidential communications

“between [the Bureau] seeking legal advice from a professional legal adviser in his/her capacity

14 as a lawyer.” 2d Seidel Decl. ¶ 39. Disclosure of the legal advice at issue would “disrupt the

adversarial process of litigation by providing access to information related to the government’s

potential legal strategies.”

Disclosure could also dissuade attorneys from sharing all relevant

material and from speaking frankly.

The Court concludes that the Bureau’s withholdings fall

within the attorney-client privilege and the FOIA exemption.

Cabezas challenges this conclusion, arguing that that “there is nothing confidential about

[his] arrest,” and that “the Bureau “could have no reasonable expectation of confidentiality in

information to be used in a criminal prosecution.” Cabezas’ Cross-Mot. at 27. Cabezas’ argument

is misplaced. The Bureau has invoked the attorney-client privilege to shield communications

between investigators and prosecutors in which legal advice was sought, which counts as a lawful

exercise of the FOIA Exemption 5. See Kolbusz v. Fed. Bureau of Investigation, No.

117CV00319EGSGMH,

, at *15 (D.D.C. Feb. 17, 2021) (concluding that the

Bureau properly asserted “attorney-client privilege to withhold information in 13 pages of

responsive documents, which include summaries of meetings between FBI agents and AUSAs and

emails between FBI agents and AUSAs”).

VII. The Bureau’s Withholdings under Exemption 6 and Exemption 7(C)

Exemption 6 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). “Similar files” include “detailed Government records on an individual which

can be identified as applying to that individual.” Prison Legal News v. Samuels,

,

1146–47 (D.C. Cir. 2015) (quotation omitted). Exemption 6 also covers “bits of personal

information, such as names and addresses, the release of which would create a palpable threat to

privacy.” Judicial Watch, Inc.,

(quotation omitted). For Exemption 6 to apply,

the disclosure must compromise a privacy interest. See Prison Legal News,

. The

15 agency may satisfy its burden of showing a substantial invasion of privacy through affidavits

containing “reasonable specificity of detail rather than merely conclusory statements.” Besson v.

United States Dep’t of Com., No. 18-CV-02527 (APM),

(D.D.C. Aug. 5, 2020)

(quotation omitted). If the information does implicate a significant privacy interest, the Court must

“balance the individual’s right of privacy against the public interest in disclosure.” See Prison

Legal News,

. The FOIA requester must satisfy its obligation to articulate a

significant public interest sufficient to outweigh the individual’s privacy interest. Pinson v. Dep’t

of Just.,

(D.D.C. 2017).

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

enforcement purposes” if their production “could reasonably be expected to constitute an

unwarranted invasion of personal privacy.”

(b)(7)(C). Exemption 7(C)’s privacy

language casts a wider net than the comparable language in Exemption 6. See People for the

Ethical Treatment of Animals v. Nat’l Institutes of Health, Dep’t of Health & Hum. Servs.,

(D.C. Cir. 2014). As a result, courts have “no need to consider Exemption 6

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

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

(D.C. Cir. 2011).

Here, the Bureau contends that “each piece of information was scrutinized to determine the

nature and strength of the privacy interest of every individual whose name and/or identifying

information appears in the documents at issue.” 2d Seidel Decl. ¶ 45. Based on that scrutiny, the

Bureau withheld names and identifying information of Bureau officials, staff, third parties,

informants, and persons of investigative interest.

¶¶ 44–54. The Bureau determined that the

individuals’ privacy interests outweighed any public interest in disclosure of names and identifying

16 information. Id. ¶ 45. The Court agrees: The withheld information protects recognized privacy

interests and Cabezas has not shown an overriding public interest in release of this information.

Cabezas challenges the Bureau’s Exemption 6 and 7(C) withholdings on the grounds that

some of the names appear in the public domain and have been acknowledged, and that sufficient

public interest exists in exposing purported law enforcement “misconduct” to offset any privacy

interest tipping in the Bureau’s favor. See Cabezas’ Cross-Mot. at 19–22. Some law enforcement

personnel names may have been public, but the Bureau “continues to assert that release of these

employees’ names within the specific investigative context of these records would constitute an

unwarranted invasion of privacy and would put these employees at unnecessary risk of retaliation

and potential violence.” 3d Seidel Decl. ¶ 19(c). Associating a particular employee with a

particular investigation “could lead to harassment, targeting, or retaliation against those employees

by criminals who may hold a grudge due to that specific investigative action.” Id. ¶19(a). What’s

more, Cabezas alludes to government misconduct but he fails to identify any specific misconduct.

As a result, the Bureau’s privacy interest in not disclosing names and identifying information

outweighs Cabezas’ claim of public interest. See 3d Seidel Decl. ¶ 19.

VIII. The Bureau’s Withholdings under Exemption 7(E)

Exemption 7(E) permits the withholding of records that are “compiled for law enforcement

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

. . . (E) 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.” See

(b)(7)(E). To justify a withholding under Exemption 7(E), the Bureau “must demonstrate that:

(1) the records were compiled for law enforcement purposes, . . . (2) the redacted information

would disclose techniques and procedures for law enforcement investigations or prosecutions, or

17 would disclose guidelines for law enforcement investigations or prosecutions, . . . and (3) the

release of the requested information might create a risk of circumvention of the law.” Shapiro v.

Dep’t of Just.,

, 115 (D.D.C. 2019) (quotations omitted). Exemption 7(E)

“sets a relatively low bar for the agency to justify withholding, . . . and where an agency specializes

in law enforcement, its decision to invoke” Exemption 7(E) receives substantial deference.

Levinthal v. Fed. Election Comm’n,

(D.D.C. 2016) (quotations omitted).

The Bureau withheld records under Exemption 7(E) in a number of categories, including:

(1) undercover operations, (2) tactical information contained in operational plans, and (3) database

information and search results. See generally 2d Seidel Decl.

As to the first (undercover operations), the Bureau “relies on undercover operations as a

useful investigative technique to conduct investigations” and “protected various forms of

undercover communications used in the investigation of” Cabezas. See 2d Seidel Decl. ¶ 59.

Releasing details about the Bureau’s undercover investigative techniques and the Bureau’s

operational security methods runs the risk of undercutting effective undercover operations. In

other words, “disclosure would decrease the efficacy of the [Bureau’s] undercover techniques, in

tum allowing future criminals to more easily evade detection by law enforcement.” See 3d Seidel

Decl. ¶ 20(a). The Court concludes that the Bureau withheld such information in conformity with

Exemption 7(E).

As to the second (tactical information contained in operational plans), the Bureau protected

a detailed operational plan containing tactical information related to Cabezas’ arrest. See 3d Seidel

Decl. ¶ 20(b). The operational details included within the plan covered the gambit, such as the

“placement of personnel, administrative and equipment information, deadly force authorization

information, targets background information, briefing locations, and legal consultations with the

18 United States Attorney’s Office.” 2d Seidel Decl. ¶ 60. Releasing the “operational plan would

allow criminals to extrapolate the [Bureau’s] methods and priorities to other operations and

enterprises” and would enable them to gain valuable insight to circumvent Bureau operations. See

3d Seidel Decl. ¶ 20(b). The Court concludes that the Bureau withheld the operational plan in

conformity with Exemption 7(E).

As to the third (database information and search results), the Bureau withheld “URLs and

sensitive details of investigative databases and database search results located through queries of

these nonpublic databases used for official law enforcement purposes by the” Bureau. 2d Seidel

Decl. ¶ 6. Releasing “database URLs or database-specific information would open those databases

up to potential intrusion.” See 3d Seidel Decl. ¶ 20(c). And releasing “these URLs employed for

investigative purposes would allow criminals to more easily access and exploit sensitive

information.”

The Court concludes that the Bureau properly withheld this database

information and the search results under Exemption 7(E).

Cabezas argues that the Court should not approve the Bureau’s Exemption 7(E)

withholdings of “purported” undercover communications because the “information withheld per

this exemption has already been disclosed to the public.” Cabezas’ Cross-Mot. at 20–21. But

Cabezas cannot show that the Bureau has acknowledged all of the withheld undercover techniques.

See 3d Seidel Decl. ¶ 20(a) (“The [Bureau] has released limited information regarding undercover

operations and communications in order to mirror information that was identically located in the

public record.”). Revealing additional details could provide potential wrongdoers further

information about the Bureau’s operations and could decrease the efficacy of the Bureau’s

techniques.

19 IX. The Bureau’s Segregability Analysis

FOIA requires that if a record contains information exempt from disclosure, any

“reasonably segregable,” non-exempt information must be disclosed after redaction of the exempt

information.

(b). To establish that all such information has been disclosed, an

agency needs to show “with reasonable specificity” that the information it has withheld cannot be

further segregated. Armstrong v. Executive Office of the President,

, 578–79 (D.C.

Cir. 1996) (quotation omitted); Canning v. DOJ,

(D.D.C. 2008).

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

reasonably segregable material,” which may be overcome by some “quantum of evidence” by the

FOIA requester. Sussman,

.

Here, the Bureau reviewed the records for any material in the public domain relating to

Cabezas. According to Seidel, the Bureau “did not withhold any reasonably segregable,

nonexempt portions from” Cabezas. 2d Seidel Decl. ¶ 29. Instead, the Bureau “endeavored to

segregate non-deliberative facts, whenever possible, and only withheld such material when it

found it was inextricably intertwined with agency deliberations.” Id. ¶ 38. And Seidel states that,

after “extensive review of the documents at issue,” the Bureau “has determined that there is no

further non-exempt information that can be reasonably segregated and released without revealing

exempt information.” Id. ¶ 66.

Cabezas argues that, even assuming some of the withheld material falls under an

exemption, the Bureau withheld entire documents instead of just the exempted portions of them.

See Cabezas’ Cross-Mot. at 24. In particular, Cabezas targets the Bureau’s withholding of large

portions of the operational plan. But Seidel has declared that the factual information throughout

the plan “is so intertwined and cannot be segregated.” 2d Seidel Decl. ¶ 18. Indeed, the plan

includes information about Cabezas’ arrest, “placement of personnel, administrative and

20 equipment information, deadly force authorization information, targets’ background information,

briefing locations, and legal consultations with the United States Attorney’s Office” all of which

makes seamless segregation unfeasible. Id. The Court concludes that Cabezas has failed to

overcome the presumption that the Bureau disclosed all segregable information.

X. Conclusion

For the foregoing reasons, the Bureau’s motion for summary judgment is GRANTED and

Cabezas’ cross-motion for summary judgment is DENIED. An Order will be entered

contemporaneously with this Memorandum Opinion.

DATE: March 28, 2022 CARL J. NICHOLS United States District Judge

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