UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANTHONY L. VIOLA,

Plaintiff,

v. Civil Action No. 16-cv-1411

U.S. DEP’T OF JUSTICE, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Anthony Viola, proceeding pro se, is currently incarcerated. He challenges

Defendants’ responses to his Freedom of Information Act (“FOIA”) request for records related to

Paul Tomko, a former Federal Bureau of Investigation (“FBI”) informant. Defendants have moved

for summary judgment on the remaining issues in dispute. Defs.’ Supp. Mot. for Summ. J at 1–

20, ECF No. 84 (“Defs.’ Mot.”). For the reasons below, the court will GRANT Defendants’

Motion for Summary Judgment.

I. BACKGROUND

In 2016, Plaintiff filed the underlying FOIA complaint. See Compl. at 1–15, ECF No 1.

He claimed that Tomko’s records should be released because Tomko “was inside” the government

“reviewing documents” in Plaintiff’s ongoing criminal investigation while engaging in his own

criminal behavior. See id. at 14. Plaintiff attached to his Complaint two 2014 Ohio newspaper

articles reporting that Tomko was a former FBI informant and was sentenced for a variety of fraud

related charges. Compl. Ex. at 29–30, ECF No. 1-1. Neither article reported that Tomko worked

Page 1 of 23 on Viola’s case. Id. Nor did any other public document. Defs.’ Stmt. of Undisputed Mat. Facts

¶ 6, ECF No. 84-1 (“Defs.’ Stmt.”). 1

On May 6, 2009, Plaintiff was indicted on two counts of conspiracy and thirty-four counts

of wire fraud. Superseding Indictment at 1–55, ECF No. 54, United States v. Viola, Case No. 8-

cr-506-6 (N.D. Ohio May 6, 2009). On March 30, 2011, a jury in the Northern District of Ohio

found him guilty on all but one count. Jury Verdict at 1–36, ECF No. 244. On January 5, 2012,

he was sentenced to 60 months for conspiracy and 150 months for each of the remaining thirty-

three wire fraud counts—to run concurrently. Judgment at 1, ECF No. 363. Since 2012, Plaintiff

has spent years contesting his conviction. See ECF Nos. 369, 375, 380, 383, 442, 445, 454, 456,

463, 470, 474 482 (showing multiple appeals and post-conviction motions from 2012 to 2015).

As Defendants now confirm, Tomko was indeed a former FBI informant. In 2007, he

signed a paid cooperation agreement with the FBI in which he agreed to “take full responsibility”

for and “make full disclosure of his own mortgage fraud-related violations and assist the FBI in

other mortgage fraud investigations.” Defs.’ Stmt. ¶ 1. On October 27, 2009, a judge in the

Northern District of Ohio sentenced Tomko to three years’ probation for one count of mail fraud

in violation of

.

; Judgment at 1–2, ECF No. 16, United States v. Tomko,

No. 09-cr-291 (N.D. Ohio Oct. 27, 2009).

In 2013, because Tomko “used information he collected in his capacity as a paid cooperator

to further his own criminal activities,” he pleaded guilty to “one count of conspiracy to commit

1 Plaintiff did not respond to Defendants’ Statement of Undisputed Facts. The court will therefore accept Defendants’ factual assertions and supporting documents as true in the absence of any controverted evidence by Plaintiff. Neal v. Kelly,

, 456–57 (D.C. Cir. 1992) (“[A]ny factual assertion in the movant’s affidavits will be accepted by the [Court] as being true unless the plaintiff submits his own affidavits or other documentary evidence contradicting the assertion.”).

Page 2 of 23 wire fraud, two counts of wire fraud, one count of student loan fraud, and one count of

concealment.” Defs.’ Stmt. ¶ 2. He was sentenced to 52 months in prison.

While serving that

sentence, Tomko was indicted on December 2, 2014, for operating an identity-theft and credit-

card fraud scheme. Id. ¶ 3. In 2014, he was again sentenced to 74 months of imprisonment for

one count of bank, wire, and access fraud, to run concurrently, but consecutive to Tomko’s 2013

conviction. Id.; Judgment at 1–2, ECF No. 23, United States v. Tomko, No. 14-cr-427 (N.D. Ohio

Sept. 10, 2015).

Despite Tomko’s multiple convictions for crimes committed while he was an informant, it

is undisputed that Tomko “was not a trial witness” in Plaintiff’s or any of his co-defendants’ trials.

Defs.’ Stmt. ¶ 7.

In 2015, as part of Plaintiff’s ongoing effort to challenge his conviction, he filed a FOIA

request for “[a]ll FBI 302s—and the agent’s original notes—from any and all interviews with ‘Paul

Tomko’ along with any reports by Mr. Tomko that were presented to the FBI to the U.S. Attorney’s

Office.” Defs.’ Stmt. ¶ 9 (citation omitted); Pl.’s Ex. K, FOIA/PA Information Req. at 1, ECF No

87-1 (“Pl.’s Ex. K”).

Because Plaintiff’s request concerned “one or more third party individuals” with

“important privacy interests,” the FBI responded on December 11, 2015, that under FOIA

Exemptions 6 and 7(c), it could “neither confirm nor deny the existence” of such records absent

“1) an express authorization and consent from the third party individual, 2) proof of death, or 3) a

justification that the public interest in disclosure outweighs personal privacy interests.” Defs.’

Stmt. ¶ 10 (internal quotation marks and citation omitted). The FBI explained that if Plaintiff

sought disclosure based on the public interest, he would have to “show the public interest in

disclosure significantly outweighs the individual’s privacy interest, and [that] the requested

Page 3 of 23 information is likely to advance that interest.” Id. (alteration in original) (internal quotation marks

and citation omitted).

The FBI has a “longstanding policy” of issuing a so-called “Glomar response,” Defs.’ Stmt.

¶ 17, which permits it to “refuse to confirm or deny the existence of records” in limited

circumstances. Wolf v. CIA,

(D.C. Cir. 2007); see also Phillippi v. CIA,

(D.C. Cir. 1981) (establishing the legal authority for Glomar responses). Here,

the FBI issued such a response because Plaintiff sought “access to information regarding a third

party, but fail[ed] to meet one of the three aforementioned conditions precedent.” Defs.’ Stmt.

¶ 17 (internal quotation marks and citation omitted).

After Plaintiff filed this case in 2015, Defendants maintained their Glomar response for

years while challenging whether Plaintiff had exhausted his administrative remedies regarding his

Tomko records request. In 2018, this court granted in part and denied in part Defendants’ first

motion for summary judgment. Viola v. U.S. Dep’t of Just.,

(D.D.C.

2018). The court held, in part, that it was “unclear whether” Plaintiff had “exhausted his

remedies.”

. Therefore, in June 2019, after Plaintiff moved for reconsideration of the

court’s summary judgment order, the court ordered, in part, additional briefing on whether Plaintiff

did, in fact, exhaust. Am. Order at 1, ECF No. 43; see also Viola v. U.S. Dep’t of Just., No. 16-

cv-1411,

, at *4 (D.D.C. June 11, 2019) (“Plaintiff also requested records on

Paul Tomko, but that request is the not subject of the motion to reconsider.”)

In July 2019, Defendants sought, and received, more time to file their supplemental motion

for summary judgment. Defs.’ Mot. for Ext. of Time at 1–2, ECF No. 45 (“Ext. Mot.”); Jul. 26,

2019 Min. Order. They explained that “upon further review, the FBI is no longer relying on its

Page 4 of 23 Exemption 6 and 7(c) Glomar response as to FOIA subject Paul Tomko . . . and will process and

release the responsive records to Plaintiff within 45 days.” Ext. Mot. at 1.

In October 2019, after receiving two more extensions, Defendants moved to stay and/or

vacate its supplemental summary judgment briefing, explaining:

“After evidence emerged of public disclosure of Tomko’s role as a “paid cooperator” – and an unattributed newspaper article describing him as a “paid informant” – the FBI informed the Court of its determination to abandon its exclusive reliance on its Exemption 6 and 7(c) Glomar response as to Tomko. See ECF No. 45. It had also decided to no longer press an exhaustion-of-administrative-remedies argument. Instead, it determined to conduct a search and process certain records. On September 9, 2019, the FBI processed and released 14 pages to Plaintiff consisting of FD-302 interview/reporting statements, and corresponding Special Agents’ hand-written interview/reporting statements relative to Tomko – partially piercing its original Glomar response to the extent of publicly acknowledged FBI investigations/prosecutions of Tomko.”

Defs.’ Mot. to Vacate and/or Stay the Supp. Summ. J. Briefing Schedule at 2, ECF No. 51 (“Defs.’

Stay Mot.”). Defendants continued that in “further refinement of its position that reflects respect

for the presumption in favor of the ‘fullest responsible disclosure’ possible, the FBI is currently

processing additional documents related to Tomko that fall within Plaintiff’s FOIA request.”

(citation omitted). 2

On October 16, 2019, by consent of the parties, the court stayed the supplemental briefing

and ordered Defendants to release all non-exempt Tomko records. Oct. 25 2019 Min. Order. On

April 15, 2022, the court directed the parties to file a Joint Status Report regarding Defendants’

productions of Plaintiff’s Tomko records request. Apr. 15, 2022 Min. Order.

2 Plaintiff complains that the FBI’s reversed Glomar response was “disingenuous,” “delayed” this litigation, and was “not appropriate” given that Tomko’s informant status was already public by the time he filed his Complaint. Pl.’s Opp’n to Gov’t Mot. at 9, ECF No. 87 (“Pl.’s Opp’n”). It is indeed curious that Defendants waited three years after Plaintiff’s 2016 Complaint to confirm what other press releases already had: that Tomko was an FBI informant.

Page 5 of 23 Of the eighty-seven responsive records regarding Tomko’s records at the FBI from 2009

to 2015 that Defendants located, one page was released in full, forty-seven pages were released in

part and forty-five pages were withheld in full—all under Exemptions 6 and/or 7 (c)–(e). Decl. of

Michael Seidel ¶ 9, ECF No. 84-2 (“Seidel Decl.”). “Consequently, the only remaining issue in

this litigation is whether the FBI fulfilled its FOIA obligations with respect to the release of the

Tomko records.” Viola v. U.S. Dep’t of Just., No. 16-cv-1411,

, at *6 (D.D.C.

Mar. 31, 2022).

II. LEGAL STANDARD

Summary judgment is appropriate when the pleadings and evidence “show[] that there is

no genuine issue as to any material fact and [that] the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment must demonstrate the

absence of a genuine issue of material fact. Celotex Corp. v. Catrett,

(1986).

A genuine issue of material fact is one that “might affect the outcome of the suit under the

governing law.” Anderson v. Liberty Lobby, Inc.,

(1986). Once the moving

party has satisfied its burden, the nonmoving party “may not rest upon the mere allegations or

denials of his pleadings, but . . . must set forth specific facts showing that there is a genuine issue

for trial.”

.

The “vast majority” of FOIA cases are decided on motions for summary judgment.

Brayton v. Office of U.S. Trade Rep.,

(D.C. Cir. 2011); see also Media Rsch.

Ctr. v. U.S. Dep’t of Just.,

(D.D.C. 2011); Citizens for Resp. & Ethics in

Wash. (“CREW”) v. U.S. Dep’t of Lab.,

(D.D.C. 2007). An agency may

be entitled to summary judgment in a FOIA case if, in addition to the absence of a material factual

dispute, it has conducted an adequate search for responsive records, and each responsive record

Page 6 of 23 that it has located either has been produced to the plaintiff or is exempt from disclosure. See

Weisberg v. U.S. Dep’t of Just.,

(D.C. Cir. 1980).

To meet its burden, a defendant may rely on reasonably detailed and non-conclusory

declarations. See McGehee v. CIA,

(D.C. Cir. 1983); Media Rsch.,

. The declarations must describe “the documents and the justifications for

nondisclosure with reasonably specific detail, demonstrate that the information withheld logically

falls within the claimed exemption,” and must not be “controverted by either contrary evidence in

the record nor by evidence of agency bad faith.’” CREW,

(quoting Mil.

Audit Project v. Casey,

(D.C. Cir. 1981)). “[A]n agency’s justification for

invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Media Rsch.,

(quoting Larson v. U.S. Dep’t of State,

(D.C. Cir. 2009)).

III. ANALYSIS

A. Adequacy of the FBI’s Search

Defendants contend that summary judgment is warranted because the search for responsive

Tomko records was adequate. Defs.’ Mot. at 8–11.

An agency must explain the “scope and method of the search” in “reasonable detail,” but

need not provide “meticulous documentation [of] the details of an epic search.” Perry v. Block,

(D.C. Cir. 1982). It must also 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 requested.” Oglesby v. U.S. Dep’t of Army,

(D.C. Cir. 1990).

“There is no requirement that an agency search every record system.” Id.; see also Kowalczyk v.

U.S. Dep’t of Just.,

(D.C. Cir. 1996). “[T]he issue to be resolved is not whether

there might exist any other documents possibly responsive to the request, but rather whether the

search for those documents was adequate.” Weisberg v. U.S. Dep’t of Just.,

, 1485 Page 7 of 23 (D.C. Cir. 1984). “Perfection is not the standard by which the reasonableness of a FOIA search is

measured.” Jud. Watch, Inc. v. Rossotti,

(D.D.C. 2003).

Defendants’ search was adequate. According to a declaration submitted by Michael Seidel,

Section Chief of the Information Management Division within the FBI, Defendants searched the

Central Records System (“CRS”), the FBI’s main document search system. Seidel Decl. ¶ 34.

That system is where Tomko’s records would most reasonably be found, because Plaintiff sought

Tomko’s interview memoranda, corresponding handwritten interview notes, and reports provided

to the FBI and the U.S. Attorney’s Office by Tomko. Id. ¶ 23. The search terms Defendants used

were appropriate for the task. Defendants searched for Tomko’s name in the normal convention

(“Tomko, Paul R.”), and used variations to change the ordered input of his name (“Tomko, Paul

R.,” “Paul R. Tomko,” “Tomko, Paul”). Id. ¶ 33. Defendants focused its CRS search from 2009

to 2015—the period during which Tomko was an FBI informant. Id. ¶¶ 27–29. And they

exhausted two different indices for their search, as one index was succeeded by another in July

2012 due to technology reasons. Defs.’ Stmt. ¶ 31.

Plaintiff’s arguments to the contrary are unavailing. He first contends that Defendants’

search was inadequate because the time parameter was between 2009 and 2015, at least two years

after Tomko’s 2007 cooperation agreement. Pl.’s Opp’n at 2–3. He also asserts that the FBI

should have searched for Tomko’s mortgage business that he used to engage in his fraudulent

conduct. Id.

But Plaintiff’s FOIA request sought only “[a]ll FBI 302s—and the agent’s original notes—

from any and all interviews with ‘Paul Tomko’ along with any reports by Mr. Tomko that were

presented to the FBI to the U.S. Attorney’s Office.” Defs.’ Stmt. ¶ 9. Plaintiff did not specify a

time period or mention Tomko’s mortgage business. A “temporal limit pertaining to FOIA

Page 8 of 23 searches . . . is only valid when the limitation is consistent with the agency’s duty to take

reasonable steps to ferret out requested documents.” McGehee,

(emphasis in

original). While Plaintiff did request “all” such records, it is unreasonable to expect the FBI to

broaden its search to include years Plaintiff did not request. Defs.’ Stmt. ¶ 9. Nor can Defendants

glean from outside “the four corners” of Plaintiff’s request that he specifically sought Tomko’s

mortgage records. Kowalczyk,

. A plaintiff’s “mere speculation” that “uncovered

documents may exist does not undermine the finding that the agency conducted a reasonable

search” for them. Steinberg v. U.S. Dep’t of Just.,

(D.C. Cir. 1994).

Accordingly, the court will grant Defendants summary judgment on the adequacy of its

search.

B. Claimed FOIA Exceptions

Defendants also seek summary judgment under FOIA Exemption 6 and 7(c)-(e) as applied

to the eighty-seven responsive records the FBI located and partially produced to Plaintiff. Defs.’

Mot. at 11–18. They further argue that their categorical withholding of Tomko’s entire informant

file was lawful under any of those same exemptions.

The court will proceed in the following order: (1) whether Defendants’ withheld

information related to third parties per FOIA Exemption 7(c) was lawful; (2) whether the

confidential information that Defendants obtained from Tomko can be withheld under Exemption

7(d); (3) whether Defendants’ withheld storage method used for the collection of investigatory

evidence under Exemption 7(e) was lawful; and, (4) whether Tomko’s informant file can be

categorically withheld under any of those named FOIA exemptions. 3

3 Plaintiff makes several arguments about alleged new evidence relating to Jimmy Dimora, Frank Russo, Dawn Pasela, and Don Nugent. Pl.’s Opp’n at 6–9, 13–14. But the court was clear in its last Memorandum Opinion that the only remaining issue in this case is the lawfulness of

Page 9 of 23 i. FOIA Exemption 7

Under Exemption 7, withheld records must be “compiled for law enforcement purposes,”

but such records may only be withheld if disclosure would cause an enumerated harm.

(b)(7); see FBI v. Abramson,

(1982); Public Emp. for Env’t Resp. v. Int’l

Boundary & Water Comm’n,

, 202–03 (D.C. Cir. 2014). “To show that . . .

documents were compiled for law enforcement purposes, the [agency] need only establish a

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

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

law.” Blackwell v. FBI,

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

omitted).

Defendants easily establish that rational connection. According to the Seidel Declaration,

the FBI “is the primary investigative agency” “with authority and responsibility to investigate all

violations of federal law not exclusively assigned to another agency[.]” Seidel Decl. ¶ 39.

Investigating and documenting Tomko’s fraud-related crimes between 2009 and 2015 was well

within the FBI’s purview. Id. ¶ 40. Indeed, Tomko agreed to become an informant as part of his

cooperation plea agreement with the government. Id. ¶ 41. The court therefore finds that

Defendants meet FOIA Exemption 7’s threshold requirement.

a. FOIA Exemption 7(c) - Third Party Information

Exemption 7(c) protects from disclosure information in law enforcement records that

“could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

(b)(7)(C). In determining whether this exemption applies, the court must balance the

Defendants’ production and withholdings of Tomko’s records. Viola,

, at *6. The court will therefore not address Plaintiff’s unrelated arguments at this juncture.

Page 10 of 23 privacy interest of individuals mentioned in the records against the public interest in disclosure.

See ACLU v. U.S. Dep’t of Just.,

(D.C. Cir. 2011). “[T]he 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. U.S. Dep’t of Just.,

(D.C.

Cir. 1992) (internal quotation marks and citation omitted). 4

i. FBI Special Agents and Professional Staff

Invoking Exemption 7(c), Defendants withheld identifying information regarding the

FBI’s special agents and professional staff. Defs.’ Mot. at 13–14. Defendants argue that such

withholdings are lawful because all FBI special agents and professional staff have important

responsibilities regarding investigations that carry privacy risks if their identifying information is

disclosed. Seidel Decl. ¶ 46. Defendants further argue that “no public interest would be served

by disclosing the identities of these FBI professional staff to the general public because their

identities would not, themselves, significantly increase the public’s understanding of the FBI’s

operations and activities.” Id. ¶ 49. The court agrees.

FBI special agents and professional staff have privacy interests that are clear, and there is

minimal to no public interest in disclosing their identities. See Safecard Servs. Inc., v. SEC,

(D.C. Cir. 1991) (adopting a categorical rule permitting an agency to withhold

information identifying private citizens mentioned in law enforcement records, unless disclosure

is “necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal

activity”). According to the Seidel Declaration, FBI special agents are typically randomly assigned

to investigations and are responsible for conducting, supervising, and/or maintaining the

4 Because the court finds that Defendants’ withholdings under FOIA Exemption 7(c) were appropriate, it “need not consider whether Exemption 6 applies.” Spurling v. U.S. Dep’t of Just.,

, 13 n.4 (D.D.C. 2019).

Page 11 of 23 investigative activities related to Tomko and others. Seidel Decl. ¶¶ 46–48. The FBI’s

professional staff “handl[es] tasks” relating to those investigations and are therefore in “positions

of access to information regarding official law enforcement investigations.”

. Although

the D.C. Circuit has “not had occasion to decide whether the SafeCard rule applies to former

officials no longer in government service,” Schrecker v. U.S. Dep’t of Just.,

(D.C. Cir. 2003), even if the FBI’s special agents or professional staff are no longer employees,

they “could become targets of harassing inquiries for unauthorized access to investigations if their

identities were released.” Seidel Decl. ¶ 49. Publicity could prejudice their behavior in other

investigations, lead to further investigation by interested parties, or foster “revenge” or a “grudge”

by those affected. Id. ¶ 48. There is little public interest in releasing the contact information of

the FBI personnel, because that reveals almost nothing about what the FBI is up to. Id. ¶ 49.

Plaintiff responds that the public disclosure of Tomko’s association with criminal activity

and the testimony at his trial diminishes the special agents’ and professional staff’s privacy

interests and bolsters the public interest. Pl.’s Opp’n at 11. But he offers no support for this

assertion. Jud. Watch, Inc. v. U.S. Dep’t of Just.,

(D.D.C. 2012) (finding

that the court need not “quantify” a “privacy interest other than to conclude that it is more than

nothing, because the plaintiff has not articulated any argument to support a public interest in the

disclosure of the records that it seeks”). Indeed, nothing in the record suggests that any FBI special

agent or professional staff was named in the press or at Plaintiff’s trial. Defs.’ Stmt. ¶ 6.

ii. Other Third Party Information

Defendants also appropriately withheld names and identifying information of other third-

party groups: the victims of Tomko’s crimes, people who were merely mentioned in responsive

records, people who were of investigative interest to the FBI, and people who were non-FBI

Page 12 of 23 government personnel mentioned in responsive witness statements. Seidel Decl. ¶¶ 50–54.

Defendants’ rationale for doing so for each group is similar. See

Tomko was convicted three

separate times for criminal conduct, in 2009, 2013, and 2014. Defs.’ Stmt. ¶¶ 1–3; see Seidel Decl.

¶ 50. Investigating that conduct required the assistance of many third parties. Moreover, other

than the financial fraud victims themselves, some third parties are only mentioned in the FBI’s

records because they “came into contact directly or indirectly with” FBI investigative subjects,

like Tomko’s family members. Seidel Decl. ¶ 51. Other third parties were identified as subjects

of an investigation. Id. ¶ 52. The final group consists of a Bureau of Prison employee and

Assistant United States Attorneys who aided the FBI’s investigations. Id. ¶ 53.

Each group’s privacy interests are at stake if their identifying information is publicly

disclosed. According to the Seidel Declaration, the victims face “unnecessary attention” and may

be further traumatized. Id. ¶ 50. The third parties whose information is mentioned because they

simply encountered an FBI investigative subject could suffer unwarranted and “extremely

negative” public attention. Id. ¶ 51. Investigative subjects and their families could face

“harassment or embarrassment, as well as undue public attention.” Id. ¶ 52. The non-FBI

personnel’s “effectiveness in assisting or participating in future FBI investigations” could be

impaired. Id. ¶ 53.

Plaintiff argues that Tomko’s privacy interests, rather than the third parties’ interests, are

relevant. Pl.’s Opp’n at 11. But the court need only balance the privacy of individuals mentioned

in the records against the public interest in disclosure. See Schrecker,

(“On the

privacy side of the ledger, our decisions have consistently supported nondisclosure of names or

other information identifying individuals appearing in law enforcement records, including

investigators, suspects, witnesses, and informants.”).

Page 13 of 23 The public interest here is negligible for the same reasons articulated for the FBI special

agents and professional staff. See supra Section III.B.i.a. No operation or activity in the FBI

would be revealed to the public by publicizing the identifying information of other third parties in

the records Plaintiff seeks. Seidel Decl. ¶¶ 50–54.

The court therefore finds that Defendants’ withholdings of the other third parties’

identifying information is lawful under FOIA Exemption 7(c).

b. FOIA Exemption 7(d) - Confidential Information Obtained from Tomko

Exemption 7(d) protects from disclosure information that “could reasonably be expected

to disclose the identity of a confidential source,” and, in the context of a criminal investigation,

“information furnished by a confidential source.”

(b)(7)(D). There is no general

“presumption that a source is confidential within the meaning of [FOIA] Exemption 7(d) whenever

[a] source provides information [to a law enforcement agency] in the course of a criminal

investigation.” U.S. Dep’t of Just. v. Landano,

(1993). Rather, a source’s

confidentiality must be determined on a case-by-case basis.

at 179–80. “A source is

confidential within the meaning of exemption 7(d) if the source provided information under an

express assurance of confidentiality or in circumstances from which such an assurance could be

reasonably inferred.” Williams v. FBI,

(D.C. Cir. 1995) (per curiam) (internal

quotation marks and citation omitted).

Defendants, having confirmed Tomko’s identity as an informant, now seek summary

judgment for withholding the “information furnished” by Tomko—the second prong of Exemption

7(d).

(b)(7)(D). They argue that such information about Tomko’s criminal

activities and that of other third parties carries “implied confidentiality” “due to the circumstances

surrounding this individual’s assistance, the risks he likely faced based on his assistance to the

Page 14 of 23 FBI, the singular nature of the information he provided, and his relationship to the crimes.” Seidel

Decl. ¶ 57.

The D.C. Circuit has set forth a four-factor test to determine implied confidentiality. Roth

v. U.S. Dep’t of Just.,

(D.C. Cir. 2011). These factors include (1) “the

character of the crime at issue,” (2) “the source’s relation to the crime,” (3) whether the source

received payment, and (4) whether the source has an “ongoing relationship” with the law

enforcement agency and typically communicates with the agency “only at locations and under

conditions which assure the contact will not be noticed.”

(internal quotations and citations

omitted).

Applying these factors, the court finds that the information that Tomko provided was

impliedly confidential. See Spurling, 425 F. Supp. 3d at 22 (finding that information provided by

a law enforcement agency was impliedly confidential “thirty years” later). According to the Seidel

Declaration, after Tomko was indicted on mortgage fraud charges, he became an informant in 2009

because of his “relationship” and “proximity to the crimes” committed by “other third parties of

investigative interest and involved business interactions.” Seidel Decl. ¶ 60. Tomko’s relationship

with these third parties arose through his own “professional business.” Id. Although Tomko is

currently incarcerated and no longer an informant, if the information he provided was revealed, he

could face “potential retaliation,” the ongoing investigations or indictments of the third parties

might be undermined, and the victims may be “unable to recover their losses.” Id. Violence and

risk of harm are precisely the reasons for an implied grant of confidentiality. See Mays v. Drug

Enforcement Admin.,

(D.C. Cir. 2000) (“The pertinent question is whether

the violence and risk of retaliation that attend this type of crime warrant an implied grant of

Page 15 of 23 confidentiality for such a source. They most assuredly do.”); Shores v. FBI,

,

83–84 (D.D.C. 2002) (finding that the threat of murder could justify implied confidentiality).

Plaintiff contends that Defendants’ explanation is “boilerplate.” Pl.’s Opp’n at 11. But the

FBI routinely withholds confidential information from informants about third parties. See, e.g.,

Petrucelli v. U.S. Dep’t of Just.,

(D.D.C. 2014) (relying on FBI declarant’s

assertion that disclosure of confidential information from an informant would risk harm to the

informant and third parties). The FBI narrowly tailored its Exemption 7(d) justification to specific

relationships Tomko developed while conducting the mortgage fraud scheme for which he was

convicted. Seidel Decl. ¶ 11. If the identities of interviewees and witnesses who provide

information about third parties’ criminal activities are subject to implied confidentiality, then

information from a confirmed, paid informant, like Tomko, must be given similar protection. See

Miller v. U.S. Dep’t of Just.,

(D.D.C. 2008) (finding that the FBI could

withhold the “identity of a third party interviewee who provided information during the course of

the FBI's investigation of plaintiff and other individuals”); Truesdale v. U.S. Dep’t of Just., No.

03-cv-1332,

, at *7 (D.D.C. Dec. 5, 2005) (finding that “there is an inference of

implied confidentiality” when informants are witnesses to a crime).

The court therefore finds that Defendants’ withholding of confidential information

provided by Tomko is lawful under FOIA Exemption 7(d).

c. FOIA Exemption 7(e) - Storage Method for Investigatory Evidence

Defendants also seek summary judgment on its withholding under the first clause of FOIA

Exemption 7(e) of non-public details about its storage device and identification number used to

collect investigatory evidence. Defs.’ Mot. at 15–16; Seidel Decl. ¶¶ 64–65. To justify a

withholding under Exemption 7(e), Defendants must demonstrate that the withheld information

Page 16 of 23 would “disclose techniques and procedures for law enforcement investigations or prosecutions, or

would disclose guidelines for law enforcement investigations or prosecutions.”

(b)(7)(E). The first clause, relating to “techniques and procedures” for investigations,

“provides categorical protection, requiring no demonstration of harm or balancing of interests.”

Peter S. Herrick’s Customs & Int’l Trade Newsl. v. U.S. Customs & Border Prot., No. 04-cv-

00377,

, at *7 (D.D.C. June 30, 2006).

Exemption 7(e) requires the government to meet a “relatively low bar” to justify

withholdings. See Blackwell,

. “[T]he exemption looks not just for circumvention

of the law, but for a risk of circumvention; not just for an actual or certain risk of circumvention,

but for an expected risk; not just for an undeniably or universally expected risk, but for a reasonably

expected risk; and not just for certitude of a reasonably expected risk, but for the chance of a

reasonably expected risk.” See

(quoting Mayer Brown LLP v. IRS,

(D.C.

Cir. 2009)). And “where an agency ‘specializes in law enforcement, its decision to invoke

exemption 7 is entitled to deference.’” See Lardner v. U.S. Dep’t of Just.,

(D.D.C. 2009) (quoting Campbell v. U.S. Dep’t of Just.,

(D.C. Cir. 1998)).

Defendants satisfy their burden here. According to the Seidel Declaration, the FBI’s

“specific collection device, collection methods, and storage techniques and procedures” as to

Tomko are not public. Seidel Decl. ¶ 64. The storage device at issue contains Tomko’s

“investigatory information relating to [the] mortgage fraud activities.”

Attached to the device

is a “device identification number.”

That information “will be used for future retrieval” by the

FBI to analyze other mortgage fraud crimes.

Publicizing any of this information would

diminish these procedures’ “relative utility” and “provide criminals” with information to “locate

where investigatory information is stored.” Id. ¶ 65.

Page 17 of 23 Other courts in this district have upheld withholding similar storage techniques and

devices. In fact, identifiers tied to the FBI’s Geo-Drug Enforcement Program and Narcotics and

Dangerous Drugs Information System are routinely withheld in this district for the same reason

that the FBI argues here: that the identifiers could benefit opportunistic criminals at the agency’s

expense. See Kowal v. U.S. Dep’t of Just., No. 18-cv-938,

, at *6 (D.D.C. Aug.

3, 2021) (finding that the FBI’s Geo-Drug Enforcement Program identifiers and Narcotics and

Dangerous Drugs Information System numbers are “routinely withheld”); Higgins v. U.S. Dep’t

of Just.,

(D.D.C. 2013) (same); Miller v. U.S. Dep’t of Just.,

, 28–29 (D.D.C. 2012) (same); Chavis v. U.S. Dep’t of Just., No. 20-cv-00638,

, at *8 (D.D.C. Apr. 28, 2021) (same). It makes little sense to bifurcate the identification

number here from the storage device itself, especially when the latter contains actual investigatory

product.

Accordingly, the court finds that Defendants’ withholding of its storage method

information was lawful under FOIA Exemption 7(e).

d. Tomko’s Informant File

Finally, Defendants invoke FOIA Exemptions 6, 7(c), 7(d), and 7(e) to argue that Tomko’s

entire informant file can be categorically withheld. Defs.’ Mot. at 12, 15–16.

The types of records normally exempt from disclosure within an informant file include

photographs, maintenance and payment documents, record checks/database searches, interview

forms, documents implementing sensitive investigative techniques, envelopes, other

documentations, handwritten notes, and emails. Seidel Decl. ¶ 75. Here, Defendants attest that

Tomko’s informant file is largely separated into two categories: evidentiary/investigative and

administrative materials.

. The first category contains information provided by the

Page 18 of 23 informant and other physical or documentary evidence.

¶¶ 95–97. The second contains

reporting communications within the FBI, standardized forms, like informant payments, and

administrative instructions.

¶¶ 98–101.

The D.C. Circuit permits agencies to apply a “categorical approach” to justify withholding

decisions when “the FOIA litigation process threatens to reveal the very information [an] agency

hopes to protect.” Prison Legal News v. Samuels,

(D.C. Cir. 2015) (internal

quotation marks and citation omitted). Under the categorical approach, “[t]he government may

justify its withholdings and redactions category-of-document by category-of-document, so long as

its definitions of relevant categories are sufficiently distinct to allow a court to determine whether

specific claimed exemptions are properly applied.”

at 1149–50 (internal quotation marks

omitted). The categorical approach is only appropriate, however, when “[t]he range of

circumstances included in [each] category . . . characteristically support an inference that the

statutory requirements for exemption are satisfied.”

(alteration adopted and internal

quotation marks omitted).

Defendants’ categorical withholding appears to be appropriate under Exemption 7(d) for

the information Tomko “furnished.”

(b)(7)(E). As Defendants attest in the Seidel

Declaration, informant files “by their very nature, consist of identifying information of confidential

sources and information provided by these sources.” Seidel Decl. ¶ 77. Tomko’s identity is now

confirmed. But the information he provided remains sensitive. For example, his file contains

“personal identifiers, including social security number, home address and phone number, financial

records, background and informant vetting documentation.”

Disclosing “even seemingly

benign information” such as “dates, times and other administrative markings” in Tomko’s file

“would reveal key pieces of information about when and what information particular informants

Page 19 of 23 provided to the FBI.”

Moreover, all other information that Tomko provided about

investigatory subjects remains confidential because disclosure risks harm to the investigative

process, the victims, and Tomko himself.

. The kind of information in Tomko’s file thus

supports a reasonable inference that it should remain confidential. See

; Williams, 69 F.3d

at 1159–60 (holding that because an informant “risked retaliation” if disclosure occurred, it was

therefore “reasonable to infer” that the information provided was implicitly confidential and thus

the entire category of information could be withheld). And requiring the FBI to provide a page-

by-page accounting would disclose the precise information that it hopes to shield. Seidel Decl.

¶ 77.

Plaintiff’s only rebuttal is that two payments that the FBI made to Tomko while he was an

informant are already public. Pl.’s Opp’n at 5. But Tomko’s informant file is likely to contain

other payment information relating to nonpublic FBI investigations. Seidel Decl. ¶¶ 75, 89.

Because Tomko’s file includes information about the entire scope of his cooperation, the fact that

two previous FBI payments to Tomko are public does not otherwise weaken the “inference” of

confidentiality extended to Tomko’s entire informant file. Prison Legal News,

.

C. Foreseeable Harm

For Defendants to prevail on their motion for summary judgment on their claimed

withholdings, they must show that it is “reasonably foresee[able] that disclosure would harm an

interest protected by an exemption.”

(a)(8)(A)(i). That burden is “independent and

meaningful.” Leopold v. U.S. Dep’t of Just.,

, 37–38 (D.C. Cir. 2024) (internal

quotation marks and citation omitted). Defendants “must provide 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 the interests protected by a FOIA

exemption.”

(internal quotation marks and citation omitted). Moreover, inquiry into Page 20 of 23 “whether the disclosure of [a requested] record would foreseeably harm an interest protected by

the exemption [is] distinct” from the question of “whether a requested record falls within an

exemption” in the first place. Id.; see also

at 37–38 (describing the separate inquiries as

“consecutive” or “sequential”). Still, if a requested record is within the scope of a FOIA

exemption, that “goes a long way to meeting the foreseeable harm requirement.” Reps. Comm. for

Freedom of the Press v. Customs & Border Prot.,

, 127 (D.D.C. 2021).

Defendants have met their burden. They argue, and the court agrees, that “with respect to

every record (or portion thereof) satisfying one or more exemptions, the FBI individually

considered whether foreseeable harm would result from disclosure of the record (or portion

thereof).” Defs.’ Mot. at 17. Regarding Exemption 7(c), the FBI’s declarant explained how

disclosing third party information could risk their identities, prejudice other investigations, benefit

other lawbreakers, or encourage retaliation. Seidel Decl. ¶¶ 46–54. After all, “disclosure of

identifying information is a harm in and of itself.” Ecological Rts. Found. v. EPA,

, 65 (D.D.C. 2021).

Similarly, the FBI declarant explained that harm could result from disclosure of the

confidential information that Tomko provided under Exemption 7(d). Disclosing such information

could create fear for other informants and adversely affect the FBI’s investigations. Seidel Decl.

¶¶ 58–60. Finally, as the court briefly discussed in Section III.B.i.d, Exemption 7 (e) protects

against revealing the FBI’s storage device and identification numbers because disclosure could

risk “a decrease in the viability of the FBI’s informant program, hindering the FBI’s ability to

enforce the law, and risk increase of law enforcement circumvention.”

.

Therefore, the court will grant summary judgment to Defendants for each of its claimed

withholdings under FOIA Exemptions 7(c)–(e).

Page 21 of 23 D. Segregability

Finally, Defendants are entitled to the presumption that they fulfilled their segregation duty

when they so swear; that presumption can only be overcome by some “quantum of evidence”

credibly put forward by the requester. Sussman v. U.S. Marshals Serv.,

(D.C.

Cir. 2007). Plaintiff provides no such evidence.

The FBI’s declarant avers that it processed all records responsive to Plaintiff’s FOIA

request to achieve maximum disclosure consistent with the access provisions of FOIA. See Seidel

Decl. ¶¶ 67, 91. Every effort was made to provide Plaintiff with all the information in the public

domain and all reasonably segregable, non-exempt information.

Moreover, the court finds that Defendants performed an “independent consideration of

whether any portion of” the exempted Tomko records “could be segregated and released without

causing foreseeable harm.” Rudometkin v. United States, No. 23-5180,

, at *8

(D.C. Cir. June 10, 2025). For example, according to the Siedel Declaration, any description of

the information withheld, beyond what is disclosed in the supporting declaration, could lead to the

identification of properly exempt information. See Seidel Decl. ¶¶ 67, 91. Specifically, the FBI

conducted a segregability analysis as to all pages released in part, see

, and all pages

withheld in full, see

. Together, that is sufficient to satisfy the FBI’s burden.

Page 22 of 23 IV. CONCLUSION

For the foregoing reasons, the court GRANTS Defendants’ Motion for Summary

Judgment. A separate order will follow shortly.

Date: June 11, 2025

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

Page 23 of 23