UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PATRICK LENZ, Co-Executor of the Estate of Harry S. Stonehill,

Plaintiff,

v. Case No. 1:20-cv-3327-RCL

CENTRAL INTELLIGENCE AGENCY,

Defendant.

MEMORANDUM OPINION

Plaintiff Patrick Lenz is the co-executor of the estate of the late Harry S. Stonehill. He

seeks disclosure of documents under the Freedom of Information Act (“FOIA”) from the Central

Intelligence Agency (“CIA”) regarding a 1962 raid of Mr. Stonehill’s business empire in the

Philippines and the extent of the U.S. government’s involvement therein. In September 2024, this

Court resolved an initial round of cross-motions for summary judgment by the parties. See Lenz

v. Cent. Intel. Agency., No. 20-cv-3327 (RCL),

(D.D.C. Sept. 30, 2024)

(“Lenz I”). The Court largely denied the CIA’s motion for summary judgment and ordered the

agency to re-run its production of responsive documents and update its Vaughn index to justify

any remaining redactions.

Now before the Court are renewed cross-motions for summary judgment. For the reasons

contained herein, the Court will GRANT the CIA’s Motion for Summary Judgment and DENY

Plaintiff’s Motion.

1 I. BACKGROUND

This case forms part of an extensive history of litigation pertaining to the 1962 Stonehill

raids in the Philippines. The Court recounted this history at length in its prior summary judgment

opinion. See Lenz I at *1–*2. Therefore, the Court will only recount the facts that are necessary

for the purpose of resolving the instant motions.

Mr. Stonehill owned a vast business empire in the Philippines. Its success attracted the

interest of both the U.S. Federal Bureau of Investigation (“FBI”) and the Philippine National

Bureau of Investigation (“NBI”). On March 3, 1962, the NBI carried out an immense raid of the

businesses. Many of the seized documents were shared with U.S. authorities and led to a multi-

million-dollar tax judgment against Stonehill in 1984 that economically devastated him. Lenz I at

*1.

The Stonehill family has sought to challenge that tax judgment ever since. Most relevant

to the instant case is the Ninth Circuit’s ruling on Mr. Stonehill's Rule 60(b)(6) motion (referred

to throughout this opinion as the “Rule 60(b) litigation”). In 2000, Mr. Stonehill moved to set

aside the tax judgment pursuant to Federal Rule of Civil Procedure 60(b)(6), arguing that the U.S.

government had committed fraud on the court by misrepresenting the extent of their involvement

in the raids and violated the Fourth Amendment to obtain the tax judgment. United States v. Est.

of Stonehill,

(9th Cir. 2011). After a decade of protracted proceedings, in 2011, the

Ninth Circuit affirmed a denial of Mr. Stonehill’s Rule 60(b) motion, stating that although he had

demonstrated “misconduct” by the government, “it [was] insufficient to demonstrate fraud on the

court.”

. Mr. Stonehill died in 2002, but his fight against the U.S. government did not

die with him. The Stonehill family has submitted numerous FOIA requests to obtain more

2 information about the raids, the U.S. government’s involvement in those raids, and the labyrinth

of litigation that resulted, bringing the Court to the instant case.

In 2018, Pauline Dale Stonehill, acting as co-executor and co-administrator of the estate of

her late husband, submitted a FOIA request to the CIA. The CIA failed to respond to Mrs.

Stonehill’s request, and in 2020, she brought this action to compel disclosure.1 After multiple

years of searching, the CIA ultimately identified thirty-six responsive documents. Under FOIA

Exemptions 1, 3, 5, 6, 7(C), and 7(D), the CIA released two of these documents in part (Documents

1 and 2) and withheld the other thirty-four in full (Documents 3 through 36). The CIA made these

withholding determinations after consultation with the FBI and Internal Revenue Service (“IRS”),

both of which claimed numerous FOIA Exemptions in various documents. Finally, the CIA

asserted a Glomar response for a portion of the FOIA request, in which the CIA indicated it could

“neither confirm nor deny” the existence of responsive documents. Plaintiff disputed many of the

withholdings and the parties cross-moved for summary judgment.

The Court resolved these motions on September 30, 2024. The Court granted the CIA’s

Motion with regard to its invocation of Glomar but denied summary judgment on all other issues.

The Court did so after discovering that nineteen documents that the CIA had identified as

responsive but had withheld in full (namely, Documents 3–15 and 17–22), were already public—

indeed, Plaintiff had produced versions of them on the public docket of this case, a fact which the

CIA failed to engage with or even acknowledge. The Court ordered the CIA to produce

Documents 3–15 and 17–22 with a new Vaughn index justifying any remaining redactions. Fifteen

other documents—namely, Documents 16 and 23–36—were, by contrast, not already on the public

1 Mrs. Stonehill died in October 2023. Dr. Patrick Lenz, co-executor of Mr. Stonehill’s estate, was substituted as the named plaintiff. Order Granting Mot. for Substitution of Parties, ECF No. 68.

3 docket of this case, but the CIA has provided conclusory and boilerplate justifications for

withholding in its Vaughn index. The Court ordered the CIA either to re-do the Vaughn index

entries for Documents 16 and 23–36, or else to produce them in full. Lastly, for the two documents

that the CIA had released in part (Documents 1 and 2), the Court similarly found that the CIA had

failed to adequately explain the bases for the redactions and ordered the CIA to further justify the

redactions in an updated Vaughn index or else release the documents in full.

About two months later, the parties filed a joint status report explaining that the CIA had

re-processed the thirty-six documents at issue, with coordination from the FBI and IRS, and

submitted new Vaughn Indices with its final production. Joint Status Report, ECF No. 90. Eight

of the documents were released without any redactions from any of the agencies (Documents 1, 2,

8–10, 18, 20 and 32), representing a significant change from the original blanket withholdings.

The remaining twenty-eight documents were released in part. The agencies invoked combinations

of Exemptions 1, 3, 6, 7(C), 7(D), and 7(E) to support a limited set of redactions, which are

summarized below:

• CIA Redactions: Documents 3–5, 7, 11–15, 17, 19, 21–26, 28, 30, 31, 33–36

• IRS Redactions: Documents 3–7, 29–30

• FBI Redactions: Documents 12, 16, 21, 26, 27, 28

See Vaughn index, CIA Mot. Exs. A & B, ECF No. 92-1. However, despite the agencies’ relatively

comprehensive production, Plaintiff continues to dispute the bases of the remaining withholdings

in a discrete set of documents.

On January 17, 2025, the CIA renewed its Motion for Summary Judgment. Mot. for

Summ. J. (“CIA Mot.”), ECF No. 92. Plaintiff filed his combined Opposition and Cross-Motion

for summary judgment thereafter. Mem. in Opp’n to Mot. for Summ. J., Corrected (“Pl.’s Mot.”),

4 Attach. A, ECF No. 94-9. The CIA then filed its Reply. Reply in Further Support of Renewed

Mot. for Summ. J. (“CIA Reply”), ECF No. 96. Plaintiff filed his Reply shortly after. Reply in

Support of Cross-Motion for Summ. J., Corrected (“Pl.’s Reply”), Attach. A, ECF No. 98-10. The

Motions are ripe for this Court’s review.

II. LEGAL STANDARDS

A. The Freedom of Information Act

The FOIA provides an avenue for anyone to request and receive the disclosure of

government records.

. “FOIA mandates a ‘strong presumption in favor of

disclosure.’” A.C.L.U. v. U.S. Dep’t of Just.,

(D.C. Cir. 2011) (quoting Nat’l Ass’n

of Home Builders v. Norton,

(D.C. Cir. 2002)). Therefore, “agencies may withhold

only those documents or portions thereof that fall under one of nine delineated statutory

exemptions.” Elliott v. U.S. Dep’t of Agric.,

(D.C. Cir. 2010). But because the

FOIA mandates a presumption of disclosure, an agency that withholds material pursuant to FOIA

exemptions “bears the burden of showing that withheld material falls within the asserted

exemption.”

(citing

(a)(4)(B)). In 2016, Congress passed the FOIA

Improvement Act, which now additionally mandates that agencies may withhold information

under a FOIA exemption 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); see also Reps. Comm. for Freedom of the Press v. Fed. Bureau of Investigation,

, 357–58 (D.C. Cir. 2021).

B. Summary Judgment

A court may grant summary judgment where “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.

5 Civ. P. 56(a). FOIA cases are usually decided on summary judgment motions. Defs. of Wildlife

v. U.S. Border Patrol,

(D.D.C. 2009). Where the party seeking disclosure

challenges an agency’s withholding of records, “the agency is entitled to summary judgment if no

material facts are in dispute and if it demonstrates that each document that falls within the class

requested . . . is wholly exempt from [the FOIA’s] disclosure requirements.” Shapiro v. Dep’t of

Just.,

(D.D.C. 2014) (citing Moayedi v. U.S. Customs & Border Prot.,

(D.D.C. 2007)). An agency meets this burden if any combination of its Vaughn

index, affidavits, or declarations “describe[s] the justifications for nondisclosure with reasonably

specific detail, demonstrate[s] that the information withheld logically falls within the claimed

exemption, and [is] not controverted by either contrary evidence in the record nor by evidence of

agency bad faith.” Larson v. Dep’t of State,

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

An agency’s justifications will be upheld if they are “logical” or “plausible.” Wolf v. Cent. Intel.

Agency,

(D.C. Cir. 2007) (citations omitted).

III. DISCUSSION

Plaintiff acknowledges that “the CIA has made a good-faith effort to unredact a significant

amount of the previously redacted information,” but maintains that the “removal of the remaining

redactions would not pose a threat to national security” and that the redacted information at issue

does not “merit privacy protections” from the agencies. Pl.’s Mot. at 4. To that end, Plaintiff

objects to a circumscribed set of withholdings in specific documents, pursuant to a handful of

FOIA Exemptions. The Court proceeds through each of Plaintiff’s arguments in turn.

A. CIA Withholdings Pursuant to Exemptions 1 and 3

The CIA withheld information under Exemption 1 and Exemption 3 across twenty-four of

the thirty-six responsive documents—namely, Documents 3–5, 7, 11–15, 17, 19, 21–26, 28, 30,

6 31, and 33–36. Plaintiff only challenges the CIA’s redactions in a subset of these records:

Documents 3, 7, 13, 15,2 23, 26, 30, 31, and 35. See Pl.’s Mot. at 13–17.

“Exemption 1 protects from disclosure any information that is classified ‘under criteria

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

policy and is in fact properly classified pursuant to such Executive order.’” Lenz I at *7 (quoting

(b)(1)). The operative Executive Order is Executive Order 13,526, which allows

classification if four conditions are met—namely, (1) an original classification authority classified

the information; (2) that authority has determined that the information’s release reasonably could

be expected to result in damage to the national security; (3) the information is U.S. Government

information; and (4) the information falls into a category listed in the Executive Order, including,

as relevant here, intelligence activities and foreign relations or foreign activities, including

confidential sources.

at *7–8 (citing Exec. Order No. 13,526 § 1.1(a),

(Dec.

29, 2009)).

“Exemption 3 provides that files are exempt from FOIA disclosure if they are ‘specifically

exempted from disclosure by statute.’” Lenz I at *8 (quoting

(b)(3)). The CIA

specifically relies on two statutes: the National Security Act of 1947 (“National Security Act)” and

the Central Intelligence Agency Act of 1949 (“CIA Act”). The National Security Act protects

information that would “reveal intelligence sources and methods,” and the CIA Act protects

information about “organization or functions of the [CIA], or of the names, official titles, salaries,

or numbers of personnel employed by the [CIA].”

Both are well-established Exemption 3

withholding statutes.

2 Plaintiff erroneously asserts that the CIA failed to include Documents 13 and 15 in its Vaughn index. To the contrary, the CIA did include both documents in its Vaughn index, claiming Exemptions 1 and 3 pursuant to the National Security Act. See Vaughn Index.

7 The CIA has met the requirements to invoke Exemptions 1 and 3 for each of the documents

at issue. Regarding Exemption 1, the withheld information has been classified by an original

classifying authority—the declarant herself. Declaration of Mary C. Williams, Litigation

Information Review Officer ¶ 17, CIA Mot. Ex. 1 (“CIA Decl.”). The CIA has concluded that the

withheld information, if released, “could impair CIA’s ability to carry out its core mission of

gathering and analyzing foreign intelligence and counterintelligence and conducting operations,

thereby damaging national security.” Id. ¶ 15. The withheld information “concern[s] a range of

[CIA] functions and operations,” and therefore falls within the categories protected by the

Executive Order. Id. ¶¶ 15–17. As such, Exemption 1 is properly invoked. The CIA has also met

all of the requirements to invoke Exemption 3—the Exemption 3 CIA Act withholdings are

“limited and consist of officers’ names and other identifying information as well as functional and

organizational information,” CIA Mot. at 6 (citing CIA Decl. ¶ 19), and the Exemption 3 National

Security Act withholdings only protect information “pertaining to intelligence sources and

methods,” CIA Mot. at 5 (citing CIA Decl. ¶ 18). Coupled with the CIA’s updated Vaughn index

and new disclosures of portions of the documents at issue, the Court concludes that the CIA has

properly supported its withholdings under Exemptions 1 and 3.

Of note, Plaintiff continues to challenge the CIA’s Vaughn index as boilerplate and

therefore insufficient to withhold various documents. Pl.’s Mot. at 13–17. Plaintiff refers back to

the Court’s first summary judgment opinion, in which it held the CIA’s Vaughn index inadequate

because “the descriptions merely recite the legal standard for each exemption asserted, with the

same definition copied and pasted for every document.” Lenz I at *10. However, the Court also

acknowledged that those generic justifications were particularly problematic because at that time,

the CIA was withholding nearly all of the documents in full. Id. (“While it is true that this Circuit

8 has upheld Vaughn indices that are ‘categorical and with little variation from page to page,’ that

was in a context where the ‘released portion of the document supplements the Vaughn index.’”)

(quoting Morley, 508 F.3d at 1123). Now that the CIA has released every document at least in

part, the Morley reasoning applies: although the Vaughn index contains some repetition, the

combination of the released portions of the documents with the Vaughn index is sufficient to justify

withholding.

Plaintiff’s other overarching challenge, specifically regarding the CIA’s use of Exemption

1, is that the Exemption “cannot be used to protect against the discovery of illegal government

conduct.” Pl.’s Mot. at 11. He argues that “classification of information under [Exemption 1]

must be for the purpose of national defense or foreign policy . . . and not to conceal violations of

the law.” Id. The Court presumes that Plaintiff is referring to Section 1.7(a) of the applicable

Executive Order that the CIA has relied on to invoke Exemption 1, which states that “[i]n no case

shall information be classified, continue to be maintained as classified, or fail to be declassified in

order to . . . conceal violations of law, inefficiency, or administrative error.”

,

710. It is true that if the CIA were invoking Exemption 1 for the sole purpose of concealing

violations of the law by the U.S. government, that would be illegal—the Executive Order

proscribes as much. However, case law in this Circuit also notes that Exemption 1 may be properly

invoked even if the documents were borne out of illegal government conduct, as Plaintiff

acknowledges in his Motion: “there is no legal support for the conclusion that illegal activities

cannot produce classified documents.” Pl.’s Mot. at 12 (citing ACLU v. U.S. Dep’t of Def.,

(D.C. Cir. 2011)).3

3 To be clear, in any event, the surveillance activities by the U.S. government in the Stonehill raid were not held to have violated the Fourth Amendment to the U.S. Constitution. It is true that the Philippine Supreme Court had held that the raid violated the Philippine Constitution’s analog to the Fourth Amendment. It is also true that in U.S. federal

9 Plaintiff attempts to distinguish the ACLU case. There, the plaintiffs were seeking

documents “relating to the capture, detention, and interrogation” of Guantanamo Bay detainees,

and “the interrogation techniques and conditions of confinement described in the requested

documents ha[d] been prohibited by the President” by an Executive Order after the activities were

carried out.

. The D.C. Circuit concluded that even this subsequent determination

of illegality did not preclude withholding because “[d]ocuments concerning surveillance activities

later deemed illegal may still produce information that may be properly withheld under exemption

1.”

(emphasis added). Plaintiff latches on to this distinction: that in ACLU, a change in

the law rendered certain CIA activities illegal after the fact, but here, Plaintiff contends that the

Stonehill raid was illegal under the controlling law of the time; it was not “subsequently held” to

be illegal. Pl.’s Reply at 18. But this distinction from ACLU does not change the Court’s

conclusion. For one, the CIA conduct in the Stonehill raid has never been determined have violated

U.S. law—though the Ninth Circuit has suggested that the seizure would have violated the Fourth

Amendment if United States agents had conducted the raids, the court held that the Fourth

Amendment was not implicated. See supra note 4. Furthermore, the ACLU court cited Lesar v.

Department of Justice in support of its holding, and Lesar appears to repudiate the distinction

Plaintiff observes by upholding the use of Exemption 1 even for documents that may also describe

illegal activity.

(D.C. Cir. 1980) (“Although the FBI’s surveillance strayed

beyond the bounds of its initial lawful security aim, that does not preclude the possibility that the

court, the U.S. government did not take the position that the raids were lawful. But instead, the presiding U.S. courts held that the United States agents did not instigate or participate in the raid, so the Fourth Amendment was not implicated. See Stonehill v. United States,

(9th Cir. 1968) (rejecting Stonehill’s allegation of illegal evidence collection by the U.S. government, finding that the U.S. government “did not participate in the unlawful search”); Est. of Stonehill,

(rejecting Stonehill’s Rule 60(b)(6) motion to vacate the tax judgment against him, concluding that there was no fraud on the court in obtaining that judgment). So, the very basis for any supposed illegality exception is unfounded.

10 actual surveillance documents and the Task Force materials that comment upon those documents

may nevertheless contain information of a sensitive nature, the disclosure of which could

compromise legitimate secrecy needs.”).4

Plaintiff’s remaining arguments to the contrary are unavailing. He cites to Weissman v.

Central Intelligence Agency,

(D.C. Cir. 1977), in which the CIA had conducted a

five-year-long surveillance operation of a U.S. citizen at home, claiming that the investigation was

for “law enforcement purposes” as is required to invoke Exemption 7.

at 694–96. The court

held that the CIA had no law enforcement authority to surveil a private American national on U.S.

soil, given that the CIA is prohibited from conducting internal security functions, so Exemption 7

was inapplicable. See

(“Congress wisely sought from the outset to make sure that when

it released the CIA genie from the lamp, the Agency would be prevented from using its enormous

resources and broad delegation of power to place United States citizens living at home under

surveillance and scrutiny.”). Here, it appears that Plaintiff intends for Weissman to stand for the

broad proposition that illegal action by the CIA cannot justify the use of any FOIA exemption.

Pl.’s Mot. at 11. But Weissman is inapposite for numerous reasons: it concerns a different FOIA

exemption, in a different scenario, that the D.C. Circuit held was inapplicable for a fact-specific

set of reasons not translatable here. True, Weissman dealt with actions taken by the CIA that were

beyond its power, but all that court held was that the CIA could not deem those activities to be

“law enforcement” under FOIA Exemption 7 when the CIA had no such domestic law enforcement

authority in its enabling charter. Indeed, the Weissman court affirmed the CIA’s use of Exemptions

4 Plaintiff likely realizes that Lesar defeats his argument regarding belated determinations of illegality, which is why he tries to distinguish Lesar by arguing that here, there is evidence of bad faith by the CIA. Pl.’s Reply at 16–17. But the Court believes that the CIA’s 180-degree change in its stance on withholdings reflects a good faith effort this time around—after years of litigation—to take its disclosure obligations seriously.

11 1 and 3.

. In short, Weissman does not support Plaintiff’s argument—and perhaps

even bolsters the CIA’s position.

Plaintiff also cites a case from the Second Circuit, in which that court stated that “an

‘illegality’ inquiry is clearly beyond the scope and purpose of FOIA.” Pl.’s Mot. at 13 (citing

ACLU v. Dep’t of Just.,

(2d Cir. 2012)). Again, this citation at first appears to

support the CIA’s position, not Plaintiff’s. But Plaintiff tries a different angle: that here, there is

no need for any “inquiry” of illegality because “the wiretapping of Stonehill was illegal under

Philippine law and it was illegal under U.S. law.” Pl.’s Mot. at 13. So (the argument goes),

because the Court need not make any independent assessment of legality of the government

conduct at issue, the Court can deny the use of any FOIA exemptions related to that conduct. This

argument fails for several reasons. For one, as the Court has already stated, it is not the case that

U.S. surveillance of Stonehill was held to be illegal. But also, Plaintiff’s argument runs head-on

into the basic point: information unearthed as a result of legally dubious conduct by the

government may still properly be withheld under FOIA, if the prongs of the applicable FOIA

Exemption are met.

For all of these reasons, the Court finds that the CIA’s invocation of Exemption 1 meets

the necessary requirements and summary judgment will be granted to the CIA on this point.

Plaintiff does not appear to make any independent challenges regarding the CIA’s use of

Exemption 3 and seems to bucket those challenges int the CIA’s use of Exemption 1. The Court

resolves those challenges in the CIA’s favor as explained supra.

12 B. IRS Withholdings Pursuant to Exemption 3: Documents 3–7 and 29

Plaintiff challenges the IRS’s use of Exemption 3 to protect tax-identifying information of

third parties contained in Documents 3–7 and 29–30.5 Exemption 3 provides that files are exempt

from FOIA disclosure if they are “specifically exempted from disclosure by statute,”

(b)(3), and here, the IRS invokes Internal Revenue Code § 6103(a) as the statute prohibiting

disclosure. Section 6103(a) provides that tax “[r]eturns and return information shall be

confidential” and shall not be disclosed “except as authorized by this title.”

(a).

In turn, § 6103(b) broadly defines the terms “return” and “return information,” including to cover

a taxpayer’s identity. Id.

A brief recounting of the relevant context is needed to resolve the parties’ continued dispute

on the use of this Exemption. In the first round of summary judgment briefing, the IRS and the

CIA had invoked Exemptions 1 and 5 to withhold Documents 3–7 and 29–30 in full, and

separately, the IRS had invoked Exemption 3 to redact tax-identifying information of third parties

contained within these documents. Because the agencies were withholding these documents in

full, Plaintiff had no ability to review the documents to challenge the redactions under Exemption

3. The Court held that the agencies’ use of Exemptions 1 and 5 was improper and ordered the CIA

to produce these documents. Lenz I at *11–13. The Court then stated that “once these documents

are produced, then Plaintiff will have the opportunity to challenge these redactions if appropriate.”

Id. at *13. The Court did note, however, that “[b]ased on this Court’s [in-camera] review, it

appears that the agencies have properly invoked Exemption 3 to protect the tax information in

these documents under IRC § 6103(a).” Id.

5 Document 30 is a duplicate of Document 3. See Lenz I at *11, *13 n.1.

13 At this stage, though the agencies no longer assert Exemptions 1 and 5 to protect these

documents, the IRS still invokes Exemption 3 to redact the tax-identifying information of third

parties. The redactions “solely consist of third-party tax return information belonging to persons

other than Harry S. Stonehill, including the identity of other taxpayers.” CIA Mot. at 7. Now that

Plaintiff has been able to view these documents with the IRS’s redactions, Plaintiff argues that

IRS’s withholdings are improper because the IRS previously produced unredacted versions of

these records to Mr. Stonehill in the Rule 60(b)(6) litigation and, perhaps, another related FOIA

case. Pl.’s Mot. at 8. Moreover, Plaintiff says that he “has produced copies of Documents 3–7

and 29–30 that do not contain section 6103(a) redactions that the IRS applied to the documents

produced by the CIA in this action.” Pl.’s Mot. at 8–9. But as the CIA points out, Plaintiff “does

not identify those records aside from Document No. 30 . . . a purported copy of which Plaintiff

attaches as Exhibit 1 to his Motion,” CIA Reply at 3, and it does not appear that Plaintiff has

produced any of the other documents on the public record of this case without IRS 6103(a)

redactions.6 But nonetheless, in Plaintiff’s Reply, he emphasizes vehemently that the IRS has

already disclosed these documents in unredacted form at some point or another in the protracted

history of litigation related to the Stonehill raids. Pl.’s Reply at 3–4.

The dispute over the IRS redactions boils down to this: if the information the IRS has

redacted pursuant to Exemption 3 is already public, then the Exemption cannot be invoked. “The

logic of FOIA mandates that where information requested is truly public, then enforcement of an

exemption cannot fulfill its purposes.” Cottone v. Reno,

(D.C. Cir. 1999)

(internal citations and quotations omitted); see also Davis v. U.S. Dep’t of Just.,

,

6 For instance, Plaintiff includes an attachment labeled “Ex. 9 Unreacted 6103 text,” ECF No. 98-9, which links to a copy of Document 12. However, there are no IRS Exemption 3 redactions claimed in Document 12.

14 1279 (D.C. Cir. 1992) (“[T]he government cannot rely on an otherwise valid exemption claim to

justify withholding information that has been ‘officially acknowledged’ or is in the ‘public

domain.’”). Of course, this makes for a curious tension: “if a [FOIA] requester can establish that

the information he seeks is ‘freely available, there would be no reason to invoke the FOIA to obtain

access to the information.’” Davis, 968 F.2d at 1279–1280 (quoting U.S. Dep’t of Just. v. Reps.

Comm. for Freedom of the Press,

(1989)). But, as courts have routinely held,

“a FOIA requester is nonetheless free to press the point.” Jud. Watch, Inc. v. U.S. Dep’t of Def.,

(D.D.C. 2013); see also Niagara Mohawk Power Corp. v. U.S. Dep’t of

Energy,

(D.C. Cir. 1999) (“[Plaintiff’s] position here is a little odd: if the

information is publicly available, one wonders, why is [Plaintiff] burning up counsel fees to obtain

it under FOIA? But the logic of FOIA compels the result: if identical information is truly public,

then enforcement of an exemption cannot fulfill its purposes.”). For a plaintiff to succeed in

making this showing, he “must bear the initial burden of pointing to specific information in the

public domain that appears to duplicate that being withheld.” Afshar v. Dep’t of State,

(D.C. Cir. 1983).

Here, the Court cannot conclude that the information withheld in Documents 3–7 and 29–

30 is “truly public,” despite Plaintiff’s impassioned statements to the contrary. Plaintiff

unfortunately does not provide the requisite detail about when each one of these documents was

allegedly disclosed publicly, so the Court is unable to verify that this information was in the public

domain at the time the IRS made its redaction determinations. It appears that for at least some of

the documents, Plaintiff is referring to disclosures by the IRS, to Mr. Stonehill’s counsel

specifically, as part of discovery in the Rule 60(b)(6) proceeding. But as Plaintiff knows from

prior FOIA litigation against the IRS, “[t]he FOIA disclosure regime . . . is distinct from civil

15 discovery.” Stonehill v. I.R.S.,

(D.C. Cir. 2009). “While information disclosed

during discovery is limited to the parties . . . when a document must be disclosed under FOIA, it

must be disclosed to the general public.”

at 538–39; see also Corley v. Holder, No. 14-cv-2157

(EGS),

, at *7 (D.D.C. Mar. 30, 2016) (“[D]isclosures made to a party during

discovery in a criminal or civil proceeding are immaterial to the FOIA analysis.”), aff’d sub nom.

Corley v. Dep’t of Just.,

(D.C. Cir. 2021). Thus, even if the IRS had produced

unredacted versions of Documents 3–7 or 28–29 to Plaintiff in a prior proceeding as part of civil

discovery, that is insufficient to show this Court that the documents are in the public domain. And

to the extent Plaintiff states that the IRS previously produced certain unredacted documents in a

prior FOIA matters, Pl.’s Mot. at 9, Plaintiff fails to identify which documents he is referring to.

See CIA Reply at 3 (“[T]he Agency and the Court are left to guess which records containing the

IRS’s Exemption 3 withholdings in this case are among the ‘many’ supposed records disclosed in

that other [FOIA] litigation.”). This conclusory statement by Plaintiff is insufficient to overcome

the IRS’s seemingly valid invocation of Exemption 3.7

Furthermore, Plaintiff appears to object to the fact that the IRS is asserting § 6103

redactions to documents now, even though in the Rule 60(b)(6) proceeding, the IRS allegedly

made no such redactions. Pl.’s Reply at 2–3 (stating that the IRS “did not assert 6103 as a basis

for redacting information that it now claims is protected in Documents 3, 4, 5, 6, 7 and 30”). The

Court construes Plaintiff’s argument as a “waiver” argument: that new privilege assertions are

impermissible because the government waived those claims by failing to raise them in the Rule

7 In Plaintiff’s reply, he directs the Court to a page of an exhibit attached to his Motion, ECF No. 94-4, which he claims has a Bates number “made by the IRS in the Stonehill FOIA administrative proceeding.” Pl.’s Reply at 6. The Court believes that Plaintiff has misidentified the exhibit and intended to refer to ECF No. 94-1, which is Document 3 (identical to Document 30) and contains the Bates number to which Plaintiff refers. The Court addresses the unique posture of these documents infra.

16 60(b)(6) proceeding. But this argument fails, as it has in prior Stonehill-related FOIA cases: there

is “no authority supporting the somewhat illogical position that the government has waived FOIA

exemption claims because it failed to raise them in earlier non-FOIA proceedings.” Stonehill v.

I.R.S.,

(D.D.C. 2008), aff’d,

(D.C. Cir. 2009).

Documents 3 and 30, which are duplicates of one another, merit special attention. It

appears that Plaintiff has now made this document public without IRS § 6103 redactions. Pl.’s

Mot. Ex. 1, ECF No. 94-1. As explained supra, if a document is public, the basis for the claimed

FOIA exemption dissipates. But here, at the time the document productions were made (and at

the time the CIA filed its renewed motion for summary judgment), it is not clear to the Court that

this document, without § 6103 redactions, was already public.8 So, the Court cannot conclude that

the “public domain” exception applied when the agencies made their withholding decisions.

What’s more, Plaintiff fails to engage with IRS’s argument that disclosing these identities would

subject the IRS to legal liability. See CIA Mot. at 8 (“[T]he IRS is unable to make a voluntary

disclosure of tax return information because doing so would subject its FOIA processors to

potential criminal charges and dismissal from their jobs,

(a)(1), and would subject

the United States to potential civil liability,

.”). The Court will therefore not

order the agencies to go back and reprocess these two identical documents.

8 Though Plaintiff gestures to the Bates numbers on Document 30 as proof that the IRS released this document in full in a prior FOIA case (thus rendering it already public), Pl.’s Reply at 6, he then reverses course, stating that this document was “produced by the IRS during the Rule 60(b)(6) proceedings without IRS 6103 redactions.” Pl.’s Reply at 7 (emphasis added). So, this appears to simply be an example of a document produced by the IRS in civil discovery, not in response to a FOIA request. Plaintiff’s briefing and accompanying exhibits are therefore insufficient to show that the IRS has previously released these materials unredacted in a prior FOIA case.

17 The Court will grant summary judgment to the CIA as it pertains to the IRS’s referral and

claimed redactions under Exemption 3 in Documents 3–7 and Documents 29–30, finding that the

agencies have sufficiently supported the claimed redactions.

C. FBI Withholdings Pursuant to Exemptions 6, 7(C), and 7(D): Document 26

Plaintiff “has no objection to the FBI or CIA redactions in Documents 19, 21, 22, 27, 28

or the FBI redactions on Document 12 at p. 9.” Pl.’s Mot. at 10. Thus, Plaintiff’s challenge to the

use of Exemptions 6, 7(C), and 7(D) narrow in on one document: Document 26, a three-page

memo dated January 13, 1959. The CIA, based on the FBI’s request, redacted certain information

on all three pages of Document 26 under Exemptions 6 and 7(C), and on one page under Exception

7(D). Specifically, the FBI redacted names and identifying information of “third parties of

investigative interest” under Exemptions 6 and 7(C), and foreign government agency information

provided under an implied assurance of confidentially under Exemption 7(D). Reply at 5.

Exemption 7 protects from disclosure “records or information compiled for law

enforcement purposes,” to the extent that disclosure would cause any of the harms enumerated in

Exemption 7’s subsections. Lenz I at *13 (citing

(b)(7)). Specifically, Exemption

7(C) exempts information from disclosure “to the extent that the production of such law

enforcement records or information . . . could reasonably be expected to constitute an unwarranted

invasion of personal privacy.”

(quoting

(b)(7)(C)).9 Exemption 7(C) also

requires courts to balance privacy interests against the public interest in disclosure. Reps. Comm.,

. Separately, Exemption 7(D) protects from disclosure records or information that

“could reasonably be expected to disclose the identity of a confidential source . . . [who] furnished

9 Exemption 7(C) “establishes a lower bar for withholding material” than Exemption 6, meaning that information properly withheld under Exemption 6 is properly withheld under Exemption 7, so the Court will focus only on the FBI’s use of Exemption 7 here. ACLU v. U.S. Dep’t of Justice,

(D.C. Cir. 2011).

18 information on a confidential basis.”

(b)(7)(D). “A source is confidential within

the meaning of 7(D) if the source provided information under an express assurance of

confidentiality or in circumstances from which such an assurance could reasonably be inferred.”

Williams v. FBI,

(D.C. Cir. 1995) (citing U.S. Dep’t of Just. v. Landano,

(1993)).

Plaintiff contends that the FBI’s redactions in Document 26 apply to a specific third-party,

and that the suspected third-party has no privacy interests. Specifically, Plaintiff speculates that

the information redacted by the FBI concerns a deceased individual named Domasco Nocon,

whose name appears unredacted in other records, and who Plaintiff argues enjoys no privacy

interests as he is deceased. Pl.’s Mot. at 10–11. Plaintiff does not disaggregate whether his

objection is to the FBI’s use of Exemption 7(C) or 7(D). See

In response, the CIA states that

“[t]he FBI will neither confirm nor deny the identity” of the person, “as doing so would obliterate

the purpose of FOIA’s privacy exemptions in the first place.” Reply at 5.

The Court agrees with the CIA. Plaintiff’s assertion that the protected name is Domasco

Nocon is just a hunch. It would be a gaping loophole in the FOIA privacy protections if a FOIA

litigant could gain access to a redacted name by a lucky guess, and the Court will not facilitate the

creation of such a loophole.10

10 In any event, regarding Exemption 7(C), individuals have at least some privacy interest in avoiding having their names be disclosed as potential subjects of an FBI investigation even after their death. Mobley v. Cent. Intel. Agency,

(D.D.C. 2013) (Howell, J.) (“[I]t is still reasonable to conclude that even merely releasing the deceased officer’s identity would impose some unwarranted invasion of personal privacy upon the deceased officer’s close relatives” and “the Court holds that the FBI properly withheld the identity of the deceased foreign law enforcement officer under FOIA Exemption 7(C)”). And regarding Exemption 7(D), “[t]he inquiry . . . is whether a source was given an express or implied assurance of confidentiality and . . . nothing . . . suggests that a promise of confidentiality expires upon a person’s death.” Blanton v. Dep’t of Just.,

(D.D.C. 1999) (Friedman, J.).

19 In his Reply, Plaintiff tries a different tack—that “[r]egardless of whether it is Nocon’s

name that has been redacted, the CIA has not identified any cognizable privacy invasion of either

NBI agents or U.S. Government agent other than the bare conclusory assessments that ‘Document

No. 26 moniker concerns an individual’s status as a potential agent of a foreign principal.” Pl.’s

Reply at 13 (quoting CIA Reply at 6). But the CIA’s justification is not a “bare conclusory

assessment,” as Plaintiff characterizes it. Rather, it is a statement, made under a sworn declaration,

relaying the nature of redacted information that implicates an individual’s serious privacy interests

about their sensitive confidential status. And in any event, “[a]rguments raised for the first time

in a reply brief are waived.” Nippon Shinyaku Co., Ltd. v. Iancu,

, 239 n.8

(D.D.C. 2019). Plaintiff’s Hail-Mary challenge to the redactions in Document 26 are

unconvincing, and the Court will grant summary judgment in the CIA’s favor.

D. Segregability

The FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided

to any person requesting such a record after deletion of the portions which are exempt under this

subsection.” 5 U.S.C. 552(b). This “segregability” requirement means that any “non-exempt

portions of a document must be disclosed unless they are inextricably intertwined with exempt

portions.” Mead Data Cent. v. U.S. Dep’t of the Air Force,

(D.C. Cir. 1977).

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

reasonably segregable material.” Sussman, 494 F.3d at 1117 (citing Boyd v. Crim. Div. of U.S.

Dep’t of Just.,

(D.C. Cir. 2007)). Yet, “agencies must still demonstrate with

‘reasonable specificity’ the bases for their conclusions regarding segregability.” Khatchadourian,

453 F. Supp. 3d at 81. Here, Plaintiff does not contest that the CIA has performed a reasonable

segregability analysis. Pl.’s Mot. at 17. The Court is satisfied with the agencies’ respective

20