UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BUZZFEED INC.,

Plaintiff,

v.

U.S. DEPARTMENT OF JUSTICE, Civ. Action No. 19-1977 (EGS) and

FEDERAL BUREAU OF INVESTIGATION,

Defendants.

MEMORANDUM OPINION

I. Introduction

Plaintiff BuzzFeed Inc. (“Plaintiff”) filed this action

against the U.S. Department of Justice (“DOJ”) and the Federal

Bureau of Investigation (“FBI”) (collectively, “Defendants” or

the “agencies”) under the Freedom of Information Act (“FOIA”),

. See generally Compl., ECF No. 1. 1 Plaintiff seeks

agency records regarding communications between the Los Angeles

FBI field office and several DNA and genetic testing businesses.

See

.

1 When citing electronic filings throughout this Opinion, the Court refers to the ECF header page numbers, not the page numbers of the filed documents. 1 Upon careful consideration of Defendants’ motion, the

opposition and cross-motion by Plaintiff, the replies thereto,

the applicable law, and the entire record herein, the Court

hereby GRANTS Defendants’ Motion for Summary Judgment, see ECF

No. 26, and DENIES Plaintiff’s Cross-Motion for Summary

Judgment, see ECF No. 27.

II. Background

A. Factual

On March 11, 2019, Plaintiff submitted a FOIA request to

the FBI to obtain: (1) communications between the Los Angeles

FBI field office and any employees of genetic genealogy service

companies Family Tree DNA, Gene by Gene, MyHeritage, and Parabon

Nanolabs (individually or collectively, “the company(s)”); (2)

contracts or purchase orders between the Los Angeles FBI field

office and Family Tree DNA, Gene by Gene, or Parabon NanoLabs;

and (3) documents compiled by a member of the Los Angeles FBI

field office and distributed to other law enforcement agencies

regarding the available commercial services for genetic

genealogy testing of crime scene samples and other services. See

Pl.’s Counter-Statement of Disputed Facts (“SODF”), ECF No. 27-2

¶ 2.

Defendants located 369 pages responsive to Plaintiff’s

request, released 43 pages in full, 60 pages in part, withheld

five pages as duplicative, and withheld 261 pages in full. See

2 Decl. Michael G. Seidel Ex. K—Vaughn Index (“Vaughn Index”), ECF

No. 26-4 at 106-35. The agencies justify their withholdings

under FOIA Exemptions 4, 6, 7(A), 7(C), 7(D), or 7(E). See SODF,

ECF No. 27-2 ¶ 7.

B. Procedural

On July 23, 2021, Defendants filed their Motion for Summary

Judgment. See Defs.’ Mot. Summ. J., ECF No. 26; Mem. P. & A.

Supp. Defs.’ Mot. Summ. J. (“Defs.’ Mot.”), ECF No. 26-1. In

support of their motion, they attached a Declaration from

Michael G. Seidel (“Mr. Seidel”), Section Chief of the

Record/Information Dissemination Section of the FBI. See Ex. 1—

Decl. Michael G. Seidel (“First Seidel Decl.”), ECF No. 26-4.

Plaintiff filed its opposition in combination with its Cross-

Motion for Summary Judgment on August 24, 2021, see Pl.’s

Combined Mem. Opp’n Defs.’ Mot. Summ. J. & Supp. Pl.’s Cross-

Mot. (“Pl.’s Opp’n”), ECF No. 27-1. On October 15, 2021,

Defendants filed their combined Opposition to Plaintiff’s Cross-

Motion for Summary Judgment and Reply in Support of Defendants’

Motion for Summary Judgment, see Opp’n Pl.’s Cross-Mot. Summ. J.

& Reply in Supp. Defs.’ Mot. Summ. J. (“Defs.’ Reply”), ECF No.

31. They attached a new declaration from Mr. Seidel, see Second

Decl. Michael G. Seidel (“Second Seidel Decl.”), ECF No. 31-1.

Also on October 15, 2021, Defendants filed an unopposed

Motion for Leave to Submit Material for Ex Parte, In Camera

3 Review. See Defs.’ Mot. Leave Submit Material Ex Parte, In

Camera Review (“Defs.’ In Camera Mot.”), ECF No. 30. Defendants

identified the proposed additional material as information from

the company(s) in support of Defendants’ withholding of

documents under FOIA Exemption 4.

. The Court granted

Defendants’ Motion on October 19, 2021. Minute Order (Oct. 19,

2021). On October 27, 2021, Defendants notified the Court that

they submitted their additional material for ex parte, in camera

review. See Defs.’ Notice In Camera Submission, ECF No. 33.

On November 5, 2021, Plaintiff submitted its Reply in

Support of Its Motion for Summary Judgment. See Pl.’s Reply

Supp. Mot. Summ. J. (“Pl.’s Reply”), ECF No. 34. The cross

motions are now ripe and ready for adjudication.

III. Legal Standard

A. FOIA

FOIA’s purpose is to “pierce the veil of administrative

secrecy and to open agency action to the light of public

scrutiny.” Dep’t of the Air Force v. Rose,

(1976) (internal quotation marks omitted). Thus, FOIA favors

“full agency disclosure unless information is exempted under

clearly delineated statutory language.”

(internal

quotation marks omitted). An agency has the burden of

demonstrating that “each document that falls within the class

requested either has been produced, is unidentifiable, or is

4 wholly [or partially] exempt from the Act’s inspection

requirements.” Goland v. CIA,

(D.C. Cir. 1978)

(internal quotation marks omitted).

“[T]he vast majority of FOIA cases” are typically and

appropriately decided on motions for summary judgment. Brayton

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

(D.C. Cir. 2011). Summary judgment is warranted “if the movant

shows [by admissible evidence] 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 party opposing a

summary judgment motion must show that a genuine factual issue

exists by “(A) citing to particular parts of materials in the

record . . . or (B) showing that the materials cited do not

establish the absence . . . of a genuine dispute.” Fed. R. Civ.

P. 56(c). “[T]he inferences to be drawn from the underlying

facts . . . must be viewed in the light most favorable to the

party opposing the motion.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp.,

(1986) (internal quotation

marks omitted).

In reviewing a summary judgment motion in the FOIA context,

the court must conduct a de novo review of the record, see

(a)(4)(B); but may rely on agency declarations, see

SafeCard Servs., Inc. v. SEC,

(D.C. Cir.

1991). Agency affidavits or declarations that are “relatively

5 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.”

(internal quotation marks omitted). “The Court

may grant summary judgment based solely on information provided

in an agency’s affidavits or declarations when they 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.’” Sierra Club v. U.S. Fish &

Wildlife Serv.,

, 31-32 (D.D.C. 2021) (quoting

Mil. Audit Project v. Casey,

(D.C. Cir.

1981)).

B. FOIA Exemptions

Pursuant to FOIA’s nine exemptions, an agency may withhold

requested information,

(b)(1)-(9); and the agency

“bears the burden of proving the applicability of claimed

exemptions,” ACLU v. U.S. Dep’t of Def.,

(D.C.

Cir. 2011). To enable the Court to determine whether documents

were properly withheld, the agency must provide a detailed

description of the information in a ‘Vaughn Index,’ sufficiently

detailed affidavits or declarations, or both. See Jud. Watch,

Inc. v. FDA,

(D.C. Cir. 2006). Although there

6 is no set formula for a Vaughn Index, the agency must

“disclos[e] as much information as possible without thwarting

the exemption’s purpose.” King v. DOJ,

(D.C.

Cir. 1987). “Ultimately, an agency’s justification for invoking

a FOIA exemption is sufficient if it appears logical or

plausible.” Jud. Watch, Inc. v. U.S. Dep’t of Def.,

(D.C. Cir. 2013) (internal quotation marks omitted).

IV. Analysis

Plaintiff limits its challenge to the agencies’ assertion

of Exemptions 4, 7(A), and 7(E) regarding certain documents

withheld in full (Bates Nos. 110-266). Pl.’s Opp’n, ECF No. 27-1

at 5. Plaintiff has expressly asserted that it does not

challenge the full or partial withholding of other documents

identified as responsive by the agencies, the agencies’

assertion of other Exemptions, and the adequacy of the agencies’

search for records. See id.; SODF, ECF No. 27-2 ¶¶ 9, 40, 43,

55, 59, 64.

A. Defendants’ Search

Under FOIA, an agency must conduct a search that is

“reasonably calculated to uncover all relevant documents.”

Weisberg v. DOJ,

(D.C. Cir. 1983). An agency

has the burden to “show that it made a good faith effort to

conduct a search for the requested records, using methods which

can be reasonably expected to produce the information

7 requested.” Oglesby v. U.S. Dep’t of the Army,

(D.C. Cir. 1990).

Mr. Seidel’s First Declaration explains that the FBI

searched its records systems, using key terms from Plaintiff’s

FOIA request to find responsive documents. First Seidel Decl.,

ECF No. 26-4 ¶¶ 29-30, 33. When that search turned up empty, the

FBI conducted a targeted search of specialized offices and

personnel that the FBI identified as most likely to have

responsive records, including consulting its Federal DNA

Database Unit, DNA Casework Unit, and National Acquisition

Programs Unit. Id. ¶¶ 31-32, 34-46. Plaintiff does not challenge

the adequacy of Defendants’ search, SODF, ECF No. 27-2 ¶ 9, and

the Court determines that this search was sufficient to meet

Defendants’ FOIA obligation.

B. Challenged Documents (Bates Nos. 110-266)

Plaintiff only challenges the Defendants’ withholding of

documents with Bates Nos. 110-266. Pl.’s Opp’n, ECF No. 27-1 at

5. These documents are all described in the Vaughn Index as

“[e]mail chain discussions concerning DNA forensic assistance

for pending FBI investigations.” See Vaughn Index, ECF No. 26-4

at 121-35. The agencies assert that the emails were “withheld

under a combination of Exemptions 4, 6, 7(A), 7(C), or 7(E).”

SODF, ECF No. 27-2 ¶ 67. Plaintiff challenges this assertion

8 only with respect to Exemptions 4, 7(A), and 7(E), see Pl.’s

Opp’n, ECF No. 27-1 at 5; which the Court analyzes below. 2

1. Exemption 4

FOIA Exemption 4 shields from disclosure “trade secrets and

commercial or financial information obtained from a person [that

is] privileged or confidential.”

(b)(4). Thus, to

claim this Exemption for information other than trade secrets,

the information must be “(1) commercial or financial, (2)

obtained from a person, and (3) privileged or confidential.”

Pub. Citizen Health Rsch. Grp. v. FDA,

(D.C.

Cir. 1983). Furthermore, the 2016 FOIA Improvement Act,

Stat. 538, imposes an additional requirement

for all exemptions that agencies “shall . . . withhold

information . . . only if . . . the agency reasonably foresees

that disclosure would harm an interest protected by an

exemption” or if “disclosure is prohibited by law.”

(a)(8)(A)(i).

Plaintiff challenges Defendants’ assertion of Exemption 4

on several grounds. First, it argues as a threshold matter that

2 Since the Court concludes that the documents were properly withheld under Exemptions 4, 7(A), and 7(E), which together cover all of the pages with Bates Nos. 110-266, see Vaughn Index, ECF No. 26-4 at 121-29, the Court does not reach Defendants’ withholdings under Exemptions 6 and 7(C) for the same pages. Plaintiff has not challenged Defendants’ withholdings under Exemptions 6 and 7(C) for these pages. See Pl.’s Opp’n, ECF No. 27-1 at 5. 9 Defendants “failed to address the records [at issue] with any

specificity,” so the claim cannot be properly analyzed and thus

fails. Pl.’s Opp’n, ECF No. 27-1 at 8. Second, it argues that

Defendants have failed to prove that the records at issue are

“confidential” within the meaning of the Exemption.

.

And finally, it argues that Defendants have failed to prove

foreseeable harm as required by the FOIA Improvement Act.

.

a. Defendants Adequately Described the Documents

Plaintiff claims that Defendants do “not even state what

information in these records specifically is exempt under

Exemption 4.” Pl.’s Opp’n, ECF No. 27-1 at 7. In general, the

agencies’ descriptions of the documents only need to contain

“reasonably specific detail,” Mil. Audit Project,

; enough for a court to determine whether an exemption is

properly invoked “without thwarting the exemption’s purpose,”

King,

. Since Plaintiff has elected not to

challenge the application of Exemption 4 to any redaction of

“pricing and financial information,” Pl.’s Reply, ECF No. 34 at

6 n.2; and since confidentially is examined in the next section,

the question is narrowed to whether the agencies have adequately

described the documents to determine whether they are

“commercial” and obtained “from a person.”

10 Under Exemption 4, the term “commercial” takes on its

“ordinary meaning,” which is “pertain[ing] to the exchange of

goods or services or the making of a profit.” Citizens for Resp.

& Ethics in Wash. v. DOJ,

, 1263 (D.C. 2023). As

the Court of Appeals for the District of Columbia Circuit (“D.C.

Circuit”) noted in a recent opinion, commercial information has

been held to include a broad variety of information, including

“a firm’s data reports on its commercial service or its

product’s favorable or unfavorable attributes,” “information an

industry has gathered regarding its competitive strengths and

weaknesses,” and “‘details of the operations of [utility

companies’] nuclear power plants.’”

at 1265 (quoting

Critical Mass Energy Project v. Nuclear Regul. Comm’n,

(D.C. Cir. 1987)). Although the Vaughn Index

description of the documents is minimal, the declarations

submitted in support of the agencies’ Motion for Summary

Judgment help to clarify what information is contained in the

emails at issue and whether that information is “commercial.”

In Mr. Seidel’s First Declaration, he describes the

documents as “confidential contractual and transactional

documents and communications, including terms, conditions,

privacy agreements, and procedural guidelines, and details

relating to advancements for use of genetic genealogy services

for law enforcement investigation purposes.” First Seidel Decl.,

11 ECF No. 26-4 ¶ 53. He further details the information provided

to the agencies as “specific pricing and financial information,”

which may “include reference to case specific services.” Id.

¶ 54.

In Mr. Seidel’s Second Declaration, he reiterates these

claims and states that the “multiple unfolding email

communications” contain “specific details on the forensic

genetic genealogy assistance provided to the FBI,” including

“proprietary forensic applications, advancements, and testing

statistics.” Second Seidel Decl., ECF No. 31-1 ¶¶ 6, 9.

These descriptions, although general, contain “reasonably

specific detail” to establish that the information described in

the emails is commercial. They describe the forensic company(s)

furnishing propriety information and details about their

services for the purpose of obtaining contracts with the FBI.

The commercial nature of these discussions is clear.

The descriptions are also detailed enough to establish that

the information was provided “by a person.” This requirement

“restrict[s] the exemption’s application to data which ha[s] not

been generated within the Government.” Bd. of Trade of City of

Chi. v. Commodity Futures Trading Comm’n,

(D.C. Cir. 1980). As described above, the communications include

case-specific details that the FBI provided to the genetic

company(s) and propriety information about the company(s’)

12 services, which were provided to the agencies in response. As

Mr. Seidel explains in his Second Declaration, the agencies are

not claiming Exemption 4 over every page of the email chains,

but rather limit their assertion of this Exemption to pages that

discuss “proprietary forensic genealogy specifics.” Second

Seidel Decl., ECF No. 31-1 ¶ 6 & n.2. Since the agencies are not

claiming Exemption 4 protection over information that they

provided in the email correspondence and the propriety data

described in Mr. Seidel’s Second Declaration was provided to the

agencies by the genetic company(s’) employee(s), Mr. Seidel’s

description of the emails is sufficient to determine that the

information was supplied “by a person.”

Accordingly, the Court disagrees with Plaintiff’s argument

that the agencies have not adequately described the documents to

determine whether Exemption 4 may apply.

b. The Documents Are Confidential

The term “confidential” in Exemption 4 is given its

“ordinary, contemporary, common meaning,” which, is “private” or

“secret.” Food Mktg. Inst. v. Argus Leader Media,

(2019) (internal quotation marks omitted).

Information is “confidential” under Exemption 4 “[a]t least

where commercial or financial information is both customarily

and actually treated as private by its owner and provided to the

government under an assurance of privacy.”

.

13 Plaintiff contests the first prong of this test, claiming that

Defendants have “failed to provide a foundation sufficient to

show that the genetic companies [the FBI] communicated with have

confidentiality policies in place that prohibit the release of

the specific information redacted in Bates 110-266.” Pl.’s

Opp’n, ECF No. 27-1 at 7-8. The Court disagrees.

Mr. Seidel’s First Declaration states that the genetic

company(s) asserted that the “information provided to the FBI

had not been made available to the public,” “[c]ompany personnel

are prohibited under the company’s confidentiality policy from

disclosing this type of information,” and that the company(s’)

“confidentiality and privacy policies do not allow

acknowledgement of working with any particular customer unless

the customer first publicly acknowledges the relationship.”

First Seidel Decl., ECF 26-4 ¶ 54. In Mr. Seidel’s Second

Declaration, he acknowledges that this information was provided

after the FBI “sent a submitter notice to the forensic genealogy

company(s) asking for their confidentiality policies” and that

as part of that notice, the FBI “provided the forensic genealogy

company(s) with proposed material for release, including the

email communications within Bates numbered pages 110-266.”

Second Seidel Decl., ECF 31-1 ¶ 7. Both of these statements were

corroborated by the ex parte, in camera materials submitted by

Defendants, which emphasized from personal knowledge that the

14 documents at issue contain proprietary details about the

company(s’) capabilities, which are held in strict confidence

within the company(s) and with their customers, both potential

and actual. Defs.’ Notice In Camera Submission, ECF No. 33 at 2.

Under the second prong of the test, the evidence

establishes that the company(s) provided the information to the

agencies under an assurance of privacy. In Mr. Seidel’s First

Declaration, he states that the “FBI submitted contractor

solicitations under the condition that the contractor services

requested would remain confidential even if the service contract

is not accepted.” First Seidel Decl., ECF No. 26-4 ¶ 55.

Accordingly, the Court concludes that the information

contained in the contested documents is “confidential” within

the meaning of Exemption 4 because it was both treated as

private by the company(s) who furnished the information and

provided to the agencies under the assurance of privacy by the

FBI.

c. Release of the Information Could Cause Foreseeable Harm to the Company(s)

To satisfy the foreseeable harm requirement, an agency

“‘must explain how disclosing, in whole or in part, the specific

information withheld under Exemption 4 would harm an interest

protected by this exemption, such as by causing genuine harm to

[the submitter’s] economic or business interests.’” WP Co. v.

15 U.S. Small Bus. Admin.,

, 119 (D.D.C. 2021)

(quoting Ctr. for Investigative Reporting v. U.S. Customs &

Border Prot.,

, 113 (D.D.C. 2019)). The

explanation itself must “articulate both the nature of the harm

[from release] and the link between the specified harm and

specific information contained in the material withheld.” Reps.

Comm. for Freedom of the Press v. FBI,

(D.C.

Cir. 2021) (internal quotation marks omitted). Plaintiff argues

that the agencies “never specif[y] what harm would flow from the

release of information withheld under Exemption 4 in Bates No.

110-266.” Pl.’s Opp’n, ECF No. 27-1 at 9. A review of the

declarations undermines this argument.

In Mr. Seidel’s Second Declaration, he specifies that the

release of the information in the emails would “place [the

genetic company(s)] at a competitive disadvantage by competitors

having access to confidential pricing and financial

information.” Second Seidel Decl., ECF No. 31-1 ¶ 8. The in

camera, ex parte materials confirm this concern and elaborate

that this harm is especially acute in the context of the

services provided because competitors are vying for contracts

with the same potential customers, so releasing information

about the company(s’) pricing, existing customers, and propriety

genetic services will place the company(s) at a competitive

disadvantage. Defs.’ Notice In Camera Submission, ECF No. 33 at

16 2. These claims link the release of the information contained in

the emails—pricing, existing customer, and propriety services

details—with the harm expected to occur—a competitive

disadvantage in the market for genetic processing services.

Plaintiff next argues that the Defendants’ articulated

harms are too speculative. Specifically, it takes issue with

Defendants’ claims that release of information “‘could put an

investigation at risk’” or that information “‘may include

reference to case specific services.’” Pl.’s Opp’n, ECF No. 27-1

at 9 (quoting Defs.’ Mot., ECF No. 26-1 at 9). However, these

examples are beside the point. The declarations pointed to other

information, including pricing data, existing customer

information, and general propriety services, which both were

included in the emails and can be reasonably foreseen to cause

economic harm to the company(s) if disclosed. There is nothing

overly speculative about the risks of harm to the company(s) if

this information is disclosed. Accordingly, the Court rejects

Plaintiff’s argument that Defendants “failed to address the

disputed records with the level of specificity the D.C. Circuit

requires and has therefore failed to prove foreseeable harm.”

Pl.’s Opp’n, ECF. No. 27-1 at 9.

For all these reasons, the Court concludes that the

agencies properly withheld the emails under FOIA Exemption 4.

17 2. Exemption 7(A)

Exemption 7(A) permits an agency to withhold records from

disclosure if the records were “compiled for law enforcement

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

enforcement records or information . . . could reasonably be

expected to interfere with enforcement proceedings.”

(b)(7)(A). “The principal purpose of Exemption 7(A) is to

prevent disclosures which might prematurely reveal the

government’s cases in court, its evidence and strategies, or the

nature, scope, direction, and focus of its investigations, and

thereby enable suspects to establish defenses or fraudulent

alibis or to destroy or alter evidence.” Maydak v. DOJ,

(D.C. Cir. 2000). To successfully invoke the Exemption,

the agency must show that “disclosure (1) could reasonably be

expected to interfere with (2) enforcement proceedings that are

(3) pending or reasonably anticipated.” Mapother v. DOJ,

(D.C. Cir. 1993) (emphasis omitted). Plaintiff

challenges Defendants’ proof on each element but limits its

challenge to information pertaining to “cold cases” identified

by the FBI. 3 Pl.’s Reply, ECF No. 34 at 3.

3 Plaintiff does not challenge the threshold requirement for Exemption 7, that the records at issue were “compiled for law enforcement purposes.” SODF, ECF No. 27-2 ¶ 36. The Court confirms that the responsive records were compiled for law enforcement purposes because the FOIA request sought information about the FBI’s interactions with forensic companies, which were 18 a. The Emails Contain Information About Reasonably Anticipated Enforcement Proceedings An ongoing investigation that is likely to lead to future

enforcement proceedings is enough to invoke the 7(A) Exemption.

See Ctr. for Nat. Sec. Stud. v. DOJ,

(D.C.

Cir. 2003). The D.C. Circuit has repeatedly explained that “[s]o

long as the investigation continues to gather evidence for a

possible future criminal case, and that case would be

jeopardized by the premature release of that evidence, Exemption

7(A) applies.” Citizens for Resp. & Ethics in Wash. v. DOJ,

(D.C. Cir. 2014) (internal quotation marks

omitted).

In Mr. Seidel’s First Declaration, he claims that the

emails were related to “assistance requested for resolving

previously closed investigations still requiring resolution

(potential reopen), and for current, pending investigations.”

First Seidel Decl., ECF No. 26-4 ¶ 61. In his Second

Declaration, Mr. Seidel clarifies that “the statement,

‘previously closed investigations’ was inadvertently used and

should have stated ‘cold case investigations.’” 4 Second Seidel

contacted by the FBI to potentially help resolve ongoing cases. Id. ¶¶ 2, 35; see also Blackwell v. FBI,

(D.C. Cir. 2011) (holding that “documents generated in the course of investigating . . . were quite obviously related to the FBI’s law enforcement duties”). 4 Plaintiff does not suggest, and the Court finds no evidence in the record, that Mr. Seidel’s change in characterization of the cases was made in bad faith. 19 Decl., ECF No. 31-1 ¶ 14. He further explains that these “cold

case investigations” are “current, pending” investigations that

will “continue to be actively pursued until resolved.”

Plaintiff argues that: (1) this distinction between

currently pending and “cold” cases “fail[s] to define [the cold

case] category of records in a manner that informs the Court’s

analysis”; and (2) the distinction between “closed” and “cold”

cases is irrelevant because the agencies “make[] no mention of

whether law enforcement proceedings are reasonably likely in the

‘cold’ cases.” Pl.’s Reply, ECF No. 34 at 4. The Court again

disagrees.

Mr. Seidel’s Second Declaration explains that the cold

cases include “kidnapping, murder, violent gang criminal

enterprises, and serial killer investigations,” which “will

continue to be actively pursued until resolved.” Second Seidel

Decl., ECF No. 31-1 ¶ 14. He also specifies that “[t]he material

in [the emails] discussing propriety forensic genealogy

advancements for use in law enforcement investigations”

concerned these cold case investigations, “where the FBI

determined the forensic genealogy company(s) could provide

additional leads to potentially resolve these cold cases.”

Accordingly, not only have Defendants established that they

continue to “gather evidence for a possible future criminal

case” in these investigations, but also they show that the

20 information furnished to them by the company(s) has brought them

closer to identifying suspects for prosecution. This description

of the “cold cases” and how the emails relate to their progress

is sufficient to inform the Court’s analysis and establish that

these investigations meet the latter two requirements for FOIA

Exemption 7(A).

b. Disclosure of the Emails Is Reasonably Likely to Interfere with Possible Future Criminal Cases

To properly claim a 7(A) Exemption, an agency must

“demonstrate specifically how each document or category of

documents, if disclosed, would interfere with the investigation,

for example, how revelation of any particular record or record

category identified as responsive to [a] request would reveal to

particular targets, actual or potential, the scope, direction,

or focus of the [investigation].” Campbell v. Dep’t of Health &

Hum. Servs.,

(D.C. Cir. 1982). Plaintiff is

correct to point out that this standard requires reasonable

specificity of both the information in the documents at issue

and the investigations claiming to be impacted. Pl.’s Reply, ECF

No. 34 at 5; see Citizens for Resp. & Ethics in Wash. v. DOJ,

(“In the typical case, . . . the requested

records related to a specific individual or entity that is the

subject of the ongoing investigation, making the likelihood of

interference readily apparent.”); Gray v. U.S. Army Crim.

21 Investigation Command,

(D.D.C. 2010)

(holding that “conclusory, boilerplate statements [about

interference], without reference to specific documents or even

categories of documents, fail to support the agency’s motion for

summary judgment on the basis of Exemption 7(A)”).

The declarations and Vaughn Index provide sufficient

specificity to establish Exemption 7(A). First, in Mr. Seidel’s

First Declaration, he avers that the 7(A) Exemption in this case

was invoked “in a limited fashion to protect specific details”

pertaining to resolving cold cases, and that “release of this

information would reveal . . . the existence of unknown

investigations for which the FBI is seeking specialized

services.” First Seidel Decl., ECF No. 26-4 ¶ 61. Second, in the

Vaughn Index for documents with Bates Nos. 110-266, several of

the pages are indicated as additionally exempt under code

“6/7C7.” See Vaughn Index, ECF No. 26-4 at 121-29. Mr. Seidel’s

First Declaration explains that this code is used to indicate

documents that contain the “names and other identifying

information of individuals that were victims of heinous and

violent crimes” in both pending and cold case investigations.

First Seidel Decl., ECF No. 26-4 ¶ 75. This establishes that the

emails at issue discuss details pertaining to specific cold case

investigations.

22 Turning to the potential for interference, Mr. Seidel’s

First Declaration asserts that release of the information in the

emails “would provide criminals with information about the

government’s investigation/enforcement strategies in ongoing

matters, allow them to predict and potentially thwart these

strategies, and/or allow them to discover/tamper with witnesses

and/or destroy evidence.” First Seidel Decl., ECF No. 26-4 ¶61.

He further specifies that “[c]riminals who are potential

suspects of these crimes could seek to avoid detention by

changing their behaviors if they learn cold cases are being

reinvestigated.” Id. ¶ 75. Since the materials identify specific

cold cases “for which the FBI is seeking specialized services,”

this inherently reveals to those perpetrators, “the scope,

direction, [and] focus” of these investigations. Additionally,

as noted in the previous section, the fact that the FBI believed

“the forensic genealogy company(s) could provide additional

leads to potentially resolve these cold cases,” and the record

shows that contracts were drawn up to retain the services of

such company(s), see Vaughn Index, ECF No. 26-4 at 130-35; the

emails provide a roadmap to the FBI’s ongoing investigations in

these identified cold cases. Thus, the potential for the type of

interference identified by the FBI can be reasonably expected.

See Citizens for Resp. & Ethics in Wash.,

(D.C.

Cir. 2014); cf. Anand v. U.S. Dep’t of Health & Hum. Servs., No.

23 21-1635,

, at *16 (D.D.C. March 27, 2023)

(holding that “premature disclosure of: evidence, . . . the

direction of the government so far, government strategy, . . .

[and] the scope and limits of the government’s investigation

. . . could reasonably be expected to interfere with the ongoing

criminal proceedings” (internal quotation marks omitted)).

Therefore, the Court concludes that the agencies properly

withheld the emails under Exemption 7(A)

3. Exemption 7(E)

FOIA Exemption 7(E) permits the withholding of information

collected for law enforcement purposes if release of that

information would “disclose techniques and procedures for law

enforcement investigations or prosecutions . . . if such

disclosure could reasonably be expected to risk circumvention of

the law.”

(b)(7)(E). The purpose of the Exemption

is to prevent publication of information that would “train

potential violators to evade the law or instruct them how to

break the law,” and to protect information that, if disclosed,

“increase[s] the risks that a law will be violated or that past

violators will escape legal consequences.” Mayer Brown LLP v.

IRS,

(D.C. Cir. 2009) (emphases omitted).

The Exemption sets a “relatively low bar” for an agency to

justify withholding information, but the government must

“‘demonstrate logically how the release of the requested 24 information might create a risk of circumvention of the law.’”

Blackwell,

(quoting Mayer Brown LLP,

).

Plaintiff challenges Defendants’ use of Exemption 7(E) with

regard to the category “strategy utilizing particular evidence.”

Pl.’s Reply, ECF No. 34 at 6. First, it claims that Defendants’

declarations are “too generic to support its withholdings” and

fail to “fully explain what information falls into this

category.”

It cites paragraph 19 of Mr. Seidel’s Second

Declaration and argues that Defendants “impl[y] that the

category refers to the genealogy companies’ DNA analysis

services, but it is unclear whether the category is limited to

this information or whether [it] applies to other evidence-

gathering techniques or to evidence beyond DNA.”

In the two

paragraphs above the one Plaintiff cites, Mr. Seidel explains

that the information at issue is “specific propriety forensic

genealogy testing innovations, advancements, and specific

details on forensic law enforcement capacities that the private

company(s) offer” as well as “investigation details,” including

“details on evidence collection and the evidence gathered for

pending investigations.” Second Seidel Decl., ECF No. 31-1

¶¶ 17-18. This information does more than “imply” that the

information in the category at issue refers to the company(s’)

capabilities. It also explains that the information contains

25 details about law enforcement’s evidence collection in specific

cases. This explanation is detailed enough to determine what is

included in the category “strategy utilizing particular

evidence.” Additionally, it is irrelevant whether the category

also includes “other evidence-gathering techniques or to

evidence beyond DNA” because all “techniques and procedures for

law enforcement investigations or prosecutions” are covered by

the Exemption if they “could reasonably be expected to risk

circumvention of the law.”

(b)(7)(E).

Plaintiff’s second challenge to Defendants’ use of 7(E) for

the category “strategy utilizing particular evidence” is that

the Exemption “does not protect law enforcement techniques and

procedures that are well known to the public.” Pl.’s Opp’n, ECF

No. 27-1 at 12. While this is correct, Mr. Seidel’s Second

Declaration emphasizes that the information contained in the

emails goes beyond the public’s general knowledge about DNA

evidence and the FBI’s use of such evidence. See Second Seidel

Decl., ECF No. 31-1 ¶ 17. Specifically, he highlights that the

information provided by the company(s) details the “innovations”

and “advancements” in this field.

Additionally, while the

public may know generally that the FBI collects and analyzes

DNA, it does not follow that the public is aware of the specific

“details on evidence collection and the evidence gathered for

pending investigations.”

(emphasis added).

26 Turning to whether the release of this category of

information could lead to circumvention of the law, the Court is

persuaded that such a risk exists. In Mr. Seidel’s Second

Declaration, he notes that revealing particular details for

pending investigations “would reveal the scope of the

investigation and tip off potential targets.”

He also notes

that the information about the genealogy company(s’)

capabilities “would provide criminals with information

concerning the FBI’s investigation and enforcement strategies in

ongoing matters, allowing them to predict and potentially thwart

these strategies[] . . . or destroy evidence.”

The

connection between revealing details of an ongoing investigation

and jeopardizing that investigation were explained in the

section discussing Exemption 7(A) and remain true here.

Additionally, the Court agrees that there is a logical

connection between releasing details about the advancements in

forensic evidence processing available to the FBI and fear that

the details of such advancements could lead future suspects to

potentially “thwart” those strategies.

Finally, although not challenged by Plaintiff, Defendants

also invoke Exemption 7(E) over the category of information

containing “internal FBI secure email and IP addresses, and

27 internet/web addresses.” 5 First Seidel Decl., ECF No. 26-4 ¶ 91.

They claim that release of such information could allow

criminals to “gain unauthorized access to, view and manipulate

data on, or otherwise interfere with the FBI’s non-public

intranet systems and view or manipulate sensitive investigative

data, interfere with the FBI’s non-public internet protocol, or

hinder the FBI’s ability to enforce the law by disrupting the

FBI’s internal communications.”

This type of information has

typically been held to be exempt under Exemption 7(E). See,

e.g., Ford v. DOJ,

(D.D.C. 2016)

(holding exempt “internal security phone number, internal email

address and/or non-public intranet web address”); Tracy v. DOJ,

(D.D.C. 2016) (holding exempt “the

address of an internal FBI website”). The Court concludes there

is no reason in the record here to deviate from that norm.

Accordingly, the Court concludes that the emails were

properly withheld under FOIA Exemption 7(E).

C. Other Documents

Of the 369 pages the agencies identified as responsive,

Defendants released 43 pages in full, withheld five pages as

5 The holding and analysis in this paragraph applies to all documents withheld in part under this category, including Bates Nos. 1-2, 4-5, 7, 13, 36, 77, 79-80, 82-86, 90, 92, 103, and 109. 28 duplicative, withheld 60 pages in part, and withheld 261 pages

in full under FOIA Exemptions 4, 6, 7(A), 7(C), 7(D), or 7(E).

SODF, ECF No. 28-1 ¶ 7. In the previous section, the Court

determined that Defendants properly withheld 157 of those pages

(Bates Nos. 110-266) in full under Exemptions 4, 7(A), and 7(E).

The Court now briefly turns to the remaining 164 pages that were

withheld either in full or in part.

1. Information Properly Withheld Under Exemptions 4 and 7(E)

Many of the remaining documents were properly withheld in

full or in part under Exemption 4. 114 documents in the Vaughn

Index have descriptions that indicate the information withheld

involves “pricing,” “terms of service,” or “contractual

specifications” for the company(s’) services. 6 These

descriptions, alongside the in camera, ex parte materials

describing confidentiality, and the foreseeable harm analysis

conducted in the Exemption 4 section above, suffice to establish

6 Vaughn Index, ECF No. 26-4, at 1, 3, 10-12, 22-27 (Bates Nos. 1, 4, 6, 21-27, 79, 82, 84, 87-88, 102, 267-341, 347-69). Documents with Bates Nos. 269-99, 301-12, 315-25, 327, 336-41, 347-58, 360-61, and 363 are also claimed withheld under Exemption 7(D). Because the Court concludes that these documents were properly withheld in full under Exemption 4, the Court does not reach Defendants’ withholdings under Exemption 7(D). Plaintiff has not challenged Defendants’ withholdings under Exemption 7(D). See generally Pl.’s Opp’n, ECF No. 27-1. 29 that these 114 documents were properly withheld either in full

or in part under Exemption 4. 7

Several documents were claimed exempt in part under

Exemption 4, 7(E), or a combination of the two. These documents,

Bates Nos. 17, 28, 36, 38-40, 42, 44-45, 57, 64-65, 75, and 77,

are all emails between FBI personnel and the genetic company(s).

Vaughn Index, ECF No. 26-4 at 3-9. According to the Vaughn

Index, they discuss various events, articles on genetics, and

material for press releases.

As noted above, Mr. Seidel

explained that the information withheld under Exemption 4

included “confidential contractual and transactional documents

and communications, including terms, conditions, privacy

agreements, and procedural guidelines, and details relating to

advancements for use of genetic genealogy services for law

enforcement investigation purposes.” First Seidel Decl., ECF No.

26-4 ¶ 53. Where this information was included in these email

communications, those details were properly redacted under

Exemption 4. Additionally, Mr. Seidel explained that information

withheld under Exemption 7(E) for strategies for utilization of

particular evidence included “sensitive, non-public strategies

for using particular types of evidence gathered during

7 Since five pages (Bates Nos. 342-46) were duplicates of pages properly withheld under Exemption 4, the agencies also properly withheld these duplicates. 30 unresolved and current pending murder, kidnapping, violent

criminal gangs, and serial killing investigations.” Id. ¶ 90.

Where this information was included in the email communications,

those details were also properly redacted under Exemption 7(E).

2. Information Properly Withheld Under Exemption 7(C)

Exemption 7(C) allows withholding of “records or

information compiled for law enforcement purposes” when such

information “could reasonably be expected to constitute an

unwarranted invasion of personal privacy.”

(b)(7)(C). “In deciding whether the release of particular

information constitutes an unwarranted invasion of privacy under

Exemption 7(C), [the Court] must balance the public interest in

disclosure against the [privacy] interest Congress intended the

Exemption to protect.” ACLU v. DOJ,

(D.C. Cir.

2011) (internal quotation marks omitted). When balancing the

private interest against the public interest in disclosure, “the

only public interest relevant for purposes of Exemption 7(C) is

one that focuses on the citizens’ right to be informed about

what their government is up to.” Davis v. DOJ,

(D.C. Cir. 1992) (internal quotation marks omitted).

Defendants invoke FOIA Exemptions 6 and 7(C) 8 to withhold

“names and other identifying information” for 8 categories of

8 In this case, because all of the responsive records were compiled for law enforcement purposes, see supra note 3, and the 31 people: (1) commercial institution personnel; (2) third parties

who provided information to the FBI; (3) third parties merely

mentioned; (4) FBI Special Agents and Professional Staff; (5)

local and state law enforcement personnel; (6) non-FBI federal

government personnel; (7) third-party victims; and (8) third

parties of investigative interest. First Seidel Decl., ECF No.

26-4 ¶ 51. Names and identifying information of private

individuals, law enforcement officers, and other employees

connected with law enforcement personnel are routinely protected

under Exemption 7(C). See Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007); Passmore v. DOJ,

(D.D.C. 2017) (citing cases). The Court agrees that

in this case the privacy interests of the third parties, law

enforcement personnel, and other related staff trigger the 7(C)

Exemption for that information.

D. Segregability

Under FOIA, “even if [the] agency establishes an exemption,

it must nonetheless disclose all reasonably segregable,

nonexempt portions of the requested record(s).” Roth v. DOJ,

(D.C. Cir. 2011) (internal quotation marks

omitted). “It has long been a rule in this Circuit that non-

information was properly withheld under Exemption 7(C), the Court need not consider whether Exemption 6 applies to the same information. 32 exempt portions of a document must be disclosed unless they are

inextricably intertwined with exempt portions.” Mead Data Cent.,

Inc. v. U.S. Dep’t of Air Force,

(D.C. Cir.

1977). The Court has an independent obligation to assess

segregability even if not contested by the requester. See

Sussman,

. However, “[a]gencies are entitled to

a presumption that they complied with the obligation to disclose

reasonably segregable material,” which must be overcome by some

“quantum of evidence” from the requester.

.

Defendants claim, and the Court has independently confirmed

above, that all the documents were properly withheld in full or

in part under a combination of at least Exemptions 4, 7(A),

7(C), and 7(E). In Mr. Seidel’s First Declaration, he states

that the FBI conducted a segregability review of the records and

determined that: (1) for the pages released in part, they

“compromise a mix of material that could be released and

material that needed to be withheld as release would trigger

foreseeable harm to one or more interests protected by the cited

FOIA exemptions on these pages”; and (2) for the pages withheld

in full, there was “no information that could be reasonably

segregated for release without triggering foreseeable harm to

one or more of the cited FOIA exemptions.” First Seidel Decl.,

ECF No. 26-4 ¶ 96. These representations, in addition to the

Court’s determination that the information has been properly

33 withheld under several exemptions, are sufficient to trigger the

presumption that the agencies satisfied their FOIA obligations

with respect to segregability.

V. Conclusion

For the foregoing reasons, the Court GRANTS Defendants’

Motion for Summary Judgment, see ECF No. 26, and DENIES

Plaintiff’s Cross-Motion for Summary Judgment, see ECF No. 27.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge October 17, 2023

34