                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

___________________________________
                                    )
JASON DENT,                         )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                Civil Action No. 12-0420 (EGS)
                                    )
EXECUTIVE OFFICE FOR UNITED         )
STATES ATTORNEYS, et al.,           )
                                    )
                  Defendants.       )
___________________________________ )


                                 MEMORANDUM OPINION


       Plaintiff brings this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C.

§ 552, seeking disclosure of records maintained by three components of the United States

Department of Justice (“DOJ”): the Executive Office for United States Attorneys (“EOUSA”),

the Federal Bureau of Investigation (“FBI”), and the Federal Bureau of Prisons (“BOP”). Now

before the Court are the parties’ cross-motions for summary judgment. Plaintiff’s motions will

be denied and defendant’s motion will be granted in part and denied in part without prejudice.


                                       I. BACKGROUND

                            A. Request to the EOUSA (No. 07-1897)

       Plaintiff sought information maintained by the United States Attorney’s Office for the

Eastern District of New York about himself. See Defs.’ Mot. to Dismiss, or Alternatively, for

Summ. J. (“Defs.’ Mem.”), Decl. of David Luczynski (“Luczynski Decl.”) ¶ 4. The EOUSA

determined that “a complete search [for responsive records would] take . . . fifty-one hours”


                                                1
beyond the two hours of search time afforded to a requester and estimated a fee of $1,428 to

conduct the search. Compl., Ex. (Letter to plaintiff from William G. Stewart II, Assistant

Director, Freedom of Information & Privacy Staff, EOUSA, dated March 6, 2008). “In light of

the pending fee, plaintiff reformulated and attempted to narrow down his request by restricting

the search for information regarding Grand Jury indictment, investigative reports, and

information concerning third party individuals.” Luczynski Decl. ¶ 7. However, because

plaintiff neither paid nor made arrangements to pay the search fees, id., the EOUSA took no

further action, see id. ¶ 9.


                          B. Request to the FBI (FOIPA No. 1092003-000)

        From the FBI’s New York Field Office (“NYFO”), plaintiff requested “records . . .

pertaining to the investigation and prosecution of Criminal Indictment No. 01-CR-1343

(E.D.N.Y.).” Defs.’ Mem., Decl. of David M. Hardy (“Hardy Decl.”), Ex. A (Letter to FBI’s

New York Field Office from plaintiff dated August 8, 2007) at 1. In subsequent correspondence,

plaintiff requested Case File #166E-NY-277771 which pertained to the homicides of Ramel

Flower and Theodore Burkowski. Hardy Decl., Ex. C (Letter to FBI NYFO from plaintiff dated

September 4, 2007) at 2. The FBI located approximately 810 pages of potentially responsive

records, and estimated duplication fees totaling $71.00 if all the pages were released. Id. ¶ 10;

see id., Ex. E (Letter to plaintiff from David M. Hardy, Section Chief, Record/Information

Dissemination Section, Records Management Division, FBI, dated November 27, 2007). The

FBI reviewed 195 pages of records and released 100 of these pages at no charge to plaintiff after

having redacted information under Exemptions 2, 6, 7(C) and 7(D). Id. ¶¶ 16-17. Subsequently,

after plaintiff filed this lawsuit, the FBI reopened plaintiff’s request, processed an additional 108

pages of records, id. ¶ 29, “from a multi-subject file” but limited its focus to “only the pages that


                                                  2
specifically mention [plaintiff] as the subject.” Id. ¶ 19. At no cost to plaintiff, the FBI released

87 pages of records after having redacted information under Exemptions 3, 5, 6, 7(C), 7(D) and

7(E). Id. ¶¶ 20-21.


                             C. Request to the BOP (No. 2008-07087)

       According to plaintiff, he submitted a FOIA request to the BOP yet received no response.

Compl. at 5. Apparently BOP staff declined to process the request unless and until plaintiff

“provide[d] a more specific description (dates and times) of the records [he is] seeking.” Id., Ex.

(Letter to plaintiff from Henry J. Sadowski, Regional Counsel, Northeast Regional Office, BOP,

dated September 22, 2008).


                                         II. DISCUSSION

                              A. Summary Judgment in a FOIA Case

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

Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). The Court

grants summary judgment if the movant shows that there is no genuine dispute as to any material

fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In a FOIA action

to compel production of agency 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 either has been produced . . . or is wholly exempt from the [FOIA’s] inspection

requirements.’” Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001)

(quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978)). Summary

judgment may be based solely on information provided in an agency’s supporting affidavits or

declarations if they are relatively detailed and when they describe “the documents and the

justifications for nondisclosure with reasonably specific detail, demonstrate that the information

                                                  3
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.” Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981).

                            B. Exhaustion of Administrative Remedies

       “Exhaustion of administrative remedies is generally required before seeking judicial

review” under the FOIA. Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (per curiam).

Exhaustion allows “the agency [] an opportunity to exercise its discretion and expertise on the

matter and to make a factual record to support its decision.” Id. (quoting Oglesby v. U.S. Dep’t

of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). It is not a jurisdictional requirement, Hidalgo v.

FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003), but is instead a prudential consideration. Wilbur,

355 F.3d at 677. If a requester has not exhausted his administrative remedies prior to the filing

of a civil action, his claim is subject to dismissal. See Hidalgo, 344 F.3d at 1258. A requester’s

“failure to comply with an agency’s FOIA regulations is the equivalent of a failure to exhaust”

administrative remedies. West v. Jackson, 448 F. Supp. 2d 207, 211 (D.D.C. 2006) (citations

omitted). “Exhaustion [of administrative remedies] does not occur until the required fees are

paid or an appeal is taken from the refusal to waive fees.” Oglesby, 920 F.2d at 66.

       “[E]ach agency, upon any request for records which (i) reasonably describes such records

and (ii) is made in accordance with published rules stating the time, place, fees (if any), and

procedures to be followed, shall make the records promptly available to any person.” 5 U.S.C. §

552(a)(3)(A). Regulations promulgated by the DOJ specify, among other things, “the schedule

of fees applicable to the processing of requests.” 5 U.S.C. § 552(a)(4)(A)(i); see 28 C.F.R. §

16.1 et seq. For purposes of these regulations, the term “component” means “each separate

bureau, office, board, division, commission, service, or administration of the [DOJ],” 28 C.F.R. §



                                                 4
16.1(b), and the EOUSA, FBI and BOP are DOJ components. See 28 C.F.R. § 0.1 (setting forth

DOJ’s organizational units). Requests submitted under the Privacy Act by individuals for

records about themselves are processed under these regulations also. See 28 C.F.R. §§ 16.1(a),

16.40(a).

        Generally, a DOJ component “shall charge for processing requests under the FOIA.” 28

C.F.R. § 16.11(a). By making a FOIA request, a requester is deemed to have agreed “to pay all

applicable fees charged under [28 C.F.R.] § 16.11, up to $25.00, unless [the requester] seek[s] a

waiver of fees.” 28 C.F.R. § 16.3(c). In addition, “[s]earch fees shall be charged . . . for time

spent searching even if [the component does] not locate any responsive record or if [it]

withhold[s] the record(s) located as entirely exempt from disclosure.” 28 C.F.R. § 16.11(c)(1)(i).

“Duplication fees will be charged” at a cost to the requester of $.10 per page. 28 C.F.R. §

16.11(c)(2). “Except for requesters seeking records for a commercial purpose, components will

provide without charge . . . [t]he first 100 pages of duplication . . . and . . . [t]he first two hours of

search . . . .” 28 C.F.R. § 16.11(d)(3). A “component ordinarily shall collect all applicable fees

before sending copies of requested records to a requester.” 28 C.F.R. § 16.11(a); see 5 U.S.C. §

552(a)(4)(A)(v) (authorizing advance payment of a fee if “the requester has previously failed to

pay fees in a timely fashion, or the agency has determined that the fee will exceed $250”). If “a

component determines or estimates that a total fee to be charged . . . will be more than $250.00,

it may require the requester to make an advance payment up to the amount of the entire

anticipated fee before beginning to process the request.” 28 C.F.R. § 16.11(i)(2). And where the

component “requires advance payment . . . , the request shall not be considered received and

further work will not be done on it until the required payment is received.” 28 C.F.R. §

16.11(i)(4).



                                                    5
       When the EOUSA acknowledged its receipt of plaintiff’s FOIA request in writing, it

reminded plaintiff that, “[b]y making a FOIA/PA request, [he had] agreed to pay fees up to $25.”

Luczynski Decl., Ex. A (Letter to plaintiff from W.G. Stewart II dated June 19, 2007). Further,

the EOUSA advised plaintiff when it had spent two hours searching for responsive records:


               Federal Regulation 28 CFR 16.11(i) provides that our office may
               collect an advance payment before we continue processing your
               request if we estimate search and or copy fees will exceed $250.00.
               Search time is $28.00 per hour, after the first two hours which are
               free. The Eastern District of New York has informed us that a
               complete search will take an additional fifty-one hours. Again, this
               excludes the first two hours which are provided free of charge.
               Therefore, the search fee would be approximately $1428. The
               district has also indicated that [it has] more than 51 boxes
               pertaining to this multi-defendant case. Normally a box contains
               between 2000 and 4000 pages of records. We do not know at this
               time, prior to a complete search, how many responsive pages will
               be found. Although not all of these records are likely to be
               released to you, we charge $.10 per page for pages released to you,
               after the first 100 pages which are free. Please inform us whether
               you only want the free 100 pages or additional releasable records.
               Once processing has been completed and a final charge is known,
               you will be required to submit the remaining fee before documents
               will be released to you . . . .

               Per 28 C.F.R. 16.11(i), your request is not considered received
               until we receive a response from you . . . within 30 days of the date
               of this letter . . . .

Id., Ex. C (Letter to plaintiff from W.G. Stewart II dated March 6, 2008) (emphasis removed).


       Plaintiff responded to the EOUSA’s notice by limiting his request to certain exhibits,

including copies of all government exhibits and investigative reports, information pertaining to

the guilty pleas of two individuals, and grand jury materials. Id., Ex. D (Letter from plaintiff

dated March 9, 2008). His response, however, did not mention fees. See id. Because it had not

received the advance payment of $1,428, the EOUSA took no further action. Id. ¶ 9.



                                                 6
       The EOUSA argues that plaintiff failed to his exhaust administrative remedies because he

failed to pay search fees in advance. See generally Defs.’ Mem. at 4-7. Plaintiff first claims to

have requested a waiver of fees. See Pl.’s Opp’n Mot. to Defs.’ Mot. to Dismiss or for Summ. J.

(“Pl.’s Opp’n”) at 6; see id., Ex. A. Second, he contends that he did exhaust administrative

remedies as evidenced by the EOUSA’s “no records” response to his request. See id. at 6-7.

Notwithstanding the nonpayment of fees, the EOUSA apparently processed the request, and its

“search for records in the United States Attorney’s Office[] for the Eastern District of New York

has revealed no responsive records” regarding plaintiff. See id., Ex. B (Letter to plaintiff from

W.G. Stewart II dated April 23, 2010). It is not clear that the EOUSA received or responded to

plaintiff’s request for a waiver of fees. Nor is it clear that plaintiff pursued an administrative

appeal the EOUSA’s “no records” determination.


       Summary judgment is appropriate when the plaintiff has failed to comply with agency fee

regulations, see Antonelli v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 555 F. Supp.

2d 16, 23 (D.D.C. 2008), and payment is required “[r]egardless of whether the plaintiff filed suit

before or after receiving the request for payment.” Trueblood v. U.S. Dep’t of the Treasury, 943

F. Supp. 64, 68 (D.D.C. 1996) (internal quotation marks omitted). Nothing in the record of this

case indicates that plaintiff paid search fees in advance, yet the EOUSA appears to have

processed the request. Under these circumstances, the EOUSA’s exhaustion argument is of no

moment. Its supporting declaration is silent as to its search for records responsive to plaintiff’s

FOIA request, however, and the Court is unable to determine whether the EOUSA has fulfilled




                                                  7
its obligations under the FOIA. Defendants’ motion, therefore, will be denied in part without

prejudice. 1


                       C. The FBI’s Response to Plaintiff’s FOIA Request

                          1. The FBI’s Search for Responsive Records

        “The adequacy of an agency’s search is measured by a standard of reasonableness and is

dependent upon the circumstances of the case.” Weisberg v. U.S. Dep’t of Justice, 705 F.2d

1344, 1351 (D.C. Cir. 1983) (internal quotation marks and citations omitted). An agency

“fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search

was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild v.

U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (citations and internal quotation marks

omitted). A search need not be exhaustive. See Miller v. U.S. Dep’t of State, 779 F.2d 1378,

1383 (8th Cir. 1995). “The issue in a FOIA case is not whether the [agency’s] searches

uncovered responsive documents, but rather whether the searches were reasonable.” Moore v.

Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citations omitted).

        To meet its burden, an agency may submit affidavits or declarations that explain in

reasonable detail the scope and method of its search. Perry v. Block, 684 F.2d 121, 126 (D.C.

Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to

demonstrate an agency’s compliance with the FOIA. Id. at 127. On the other hand, if the record

“leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is




1
       The Court is no better able to determine whether the BOP has fulfilled its obligations
under the FOIA. In his complaint, plaintiff alleges that the BOP “improperly withheld records in
response to [his] Freedom of Information Request,” Compl. at 5, yet the defendants’
memorandum fails to address this claim. This, too, is a basis for denying defendants’ motion in
part.

                                                 8
not proper.” Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990); see also Valencia-

Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999).

                               i. The FBI’s Central Records System

       The FBI’s Central Records System (“CRS”) “enables the FBI to maintain information . . .

acquired in the course of fulfilling its . . . law enforcement responsibilities.” Hardy Decl. ¶ 22.

The CRS includes “administrative, applicant, criminal, personnel and other files compiled for

law enforcement purposes,” and “consists of a numerical sequence of files broken down [by]

subject matter.” Id. The subject matter of a CRS file “may relate to an individual, organization,

company, publication, activity or foreign intelligence matter (or program).” Id. The FBI’s

headquarters office (“FBIHQ”) maintains certain CRS records while FBI field offices maintain

those CRS records “that are pertinent to specific field offices.” Id. In order to search the CRS,

“the FBI uses . . . the Automated Case Support System (‘ACS’).” Id.

       The ACS is “an internal computerized subsystem of the CRS,” id. ¶ 23, which makes it

possible to retrieve data from the CRS using alphabetically-arranged General Indices. Id. “The

General Indices consist of index cards on various subject matters that are searched either

manually or though the automated indices.” Id. There are two categories of General Indices:

               (a) A “main” entry – A “main” entry, or “main” file, carries the
               name corresponding with a subject of a file contained in the CRS.

               (b) A “reference” entry – A “reference” entry, sometimes called a
               “cross reference,” is generally only a mere mention or reference to
               an individual, organization, or other subject matter, contained in a
               document located in another “main” file on a different subject
               matter.

Id. A search of the General Indices “to locate records concerning a particular subject, such as

Jason Dent, [is] made by searching the subject requested in the index.” Id. ¶ 24.




                                                  9
        “The ACS consists of three integrated, yet separately functional, automated applications

that support case management functions for all FBI investigative and administrative cases.” Id. ¶

26. The Investigative Case Management application “provides for the ability to open, assign,

and close investigative and administrative cases [and to] set, assign, and track leads.” Id. ¶ 26(a).

Each new case is assigned a Universal Case File Number which is used by FBIHQ and all FBI

field offices “that are conducting or assisting in the investigation.” Id. The Electronic Case File

application “serves as the central electronic repository for the FBI’s official text-based

documents.” Id. ¶ 26(b). The Universal Index application provides “a complete subject/case

index to all investigative and administrative cases.” Id. ¶ 26(c). The FBI does not index every

name in its files; individual FBI Special Agents assigned to an investigation decide whether “to

index names other than subjects, suspects, and victims.” Id. ¶ 27. Without an index “to this

enormous amount of data, information essential to ongoing investigations could not be readily

retrieved,” and the agency’s files “would thus be merely archival in nature.” Id. “[T]he General

Indices to the CRS are the means by which the FBI can determine what retrievable information,

if any, [it] may have in its CRS files on a particular subject matter i.e., in this case, plaintiff,

Jason Dent.” Id.

                         ii. The FBI’s Search Yielded Responsive Records

        The FBI searched the CRS’ automated indices “to identify all potentially responsive main

NYFO files indexed to Jason Dent, utilizing a four-way phonetic breakdown of the names,

including any variations of the first or last name that sound like or are spelled differently than the

names,” as well as plaintiff’s date of birth “to facilitate the identification of responsive records.”

Hardy Decl. ¶ 28. This search yielded “one responsive main NYFO file and four sub-files of the

main file that were processed for release to plaintiff.” Id. “The FBI has reviewed a total of 303



                                                   10
pages in response to plaintiff’s NYFO request.” Id. ¶ 32. It withheld 116 pages in full (seven of

which were determined to be duplicates), released 165 pages in part, and released 22 pages in

full. Id.


        Of the records released, plaintiff deems them “useless due to disorganization,

incompleteness and heavy redactions.” Pl.’s Opp’n at 7. The FBI, however, is under no

obligation to arrange responsive records in any particular order. And plaintiff’s mere

“speculation as to the existence of additional records . . . does not render the search[]

inadequate.” Concepción v. FBI, 606 F. Supp. 2d 14, 30 (D.D.C. 2009); see Baker & Hostetler

LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (finding the requester’s

“assertion that an adequate search would have yielded more documents is mere speculation” and

affirming district court’s decision that agency’s search procedure was “reasonably calculated to

generate responsive documents”). The Court concludes that the FBI’s search for records

responsive to plaintiff’s FOIA request was reasonably calculated to locate the information

plaintiff seeks.


                                 2. Exemptions Claimed by the FBI

                                           a. Exemption 5


        Exemption 5 protects from disclosure “inter-agency or intra-agency memorand[a] or

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

agency.” 5 U.S.C. § 552(b)(5). “[T]he parameters of Exemption 5 are determined by reference

to the protections available to litigants in civil discovery; if material is not available in discovery,

it may be withheld from FOIA requesters.” Burka v. U.S. Dep’t of Health & Human Servs., 87

F.3d 508, 516 (D.C. Cir. 1996) (internal quotation marks omitted); Nat’l Labor Relations Bd. v.


                                                  11
Sears, Roebuck & Co., 421 U.S. 132, 148 (1975). This exemption “is interpreted to encompass .

. . three evidentiary privileges: the deliberative process privilege, the attorney-client privilege,

and the attorney work product privilege.” Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002) ;

Citizens for Responsibility and Ethics in Washington v. U.S. Dep’t of Educ., __ F. Supp. 2d __,

__, 2012 WL 5907027, at *8 (D.D.C. Nov. 26, 2012) (citations omitted).


       “The deliberative process privilege protects documents reflecting advisory opinions,

recommendations and deliberations comprising part of a process by which governmental

decisions and policies are formulated.” Loving v. Dep’t of Defense, 550 F.3d 32, 37 (D.C. Cir.

2008) (quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001))

(internal quotation marks omitted). It “shields only government ‘materials which are both

predecisional and deliberative.’” Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997)

(quoting Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 774 (D.C. Cir. 1988) (en

banc)). For example, the exemption “covers recommendations, draft documents, proposals,

suggestions, and other subjective documents which reflect the personal opinions of the writer

rather than the policy of the agency.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d

854, 866 (D.C. Cir. 1980).


       To show that a document is predecisional, the agency need not identify a specific final

agency decision; it is sufficient to establish “what deliberative process is involved, and the role

played by the documents at issue in the course of that process.” Heggestad v. U.S. Dep’t of

Justice, 182 F. Supp. 2d 1, 7 (D.D.C. 2000) (quoting Coastal States Gas, 617 F.2d at 868). A

document is “deliberative” if it “makes recommendations or expresses opinions on legal or

policy matters.” Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975). However, if “[a]



                                                  12
document . . . does nothing more than explain an existing policy [it] cannot be considered

deliberative.” Public Citizen, Inc. v. OMB, 598 F.3d 865, 876 (D.C. Cir. 2010). The deliberative

process privilege is thought to “prevent injury to the quality of agency decisions.” Sears,

Roebuck, 421 U.S. at 151; see Coastal States Gas, 617 F. 2d at 866. Such protection encourages

frank discussion of policy matters, prevents premature disclosure of proposed policies, and

avoids public confusion that may result from disclosure of rationales that were not ultimately

grounds for agency action. See, e.g., Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048

(D.C. Cir. 1982).


       Citing Exemption 5 and the deliberative process privilege, the FBI has withheld

information from 30 pages of records. Hardy Decl. ¶ 39. One document, withheld in full, “is an

unsigned draft Complaint” written by a Special Agent assigned to the NYFO concerning a third

party individual. Id. Another document, also withheld in full, is “an unsigned draft Federal

Grand Jury Superceding Indictment from the United States District Court for the Eastern District

of New York, concerning plaintiff and co-defendants, collectively known as the ‘Cream Team.’”

Id. The declarant ably provides a description of the documents withheld but makes no effort to

establish that the information withheld is either inter- or intra-agency, or that the information is

predecisional and deliberative.


                                          b. Exemption 7

                                   i. Law Enforcement Records

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

enforcement purposes,” but only to the extent that disclosure of such records would cause an

enumerated harm. 5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982). “To

show that . . . documents were compiled for law enforcement purposes, the [agency] need only

                                                 13
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, 646 F.3d 37, 40 (D.C. Cir. 2011) (internal quotation

marks and citations omitted). It is apparent not only from the nature of the FOIA request but

also from the type and content of the documents produced by the FBI that the responsive records

were compiled for law enforcement purposes.


       The FBI’s declarant explains that “[d]ocuments responsive to plaintiff’s request relate to

the FBI’s . . . criminal investigation of plaintiff and the ‘Cream Team’ related to gang and drug

activity, and murder.” Hardy Decl. ¶ 41. Plaintiff has been “convicted of conspiring to

distribute and possess with intent to distribute fifty or more grams of crack cocaine, . . .

engaging in [a] narcotics conspiracy resulting in murder, . . . engaging in narcotics conspiracy

while engaging in a conspiracy to murder, . . . and using a firearm in relation to a drug trafficking

offense and during a crime of violence . . . .,” for which he is serving prison term of more than

360 months. Id.


                                        ii. Exemption 7(C) 2


       FOIA Exemption 7(C) protects from disclosure information in law enforcement records

that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5

U.S.C. § 552 (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
2
        It is the FBI’s practice to assert Exemption 6 in conjunction with Exemption 7(C) to
withhold information in law enforcement records pertaining to third parties. Hardy Decl. ¶ 42
n.2. Because this information properly is withheld under Exemption 7(C) alone, the Court need
not determine the applicability of Exemption 6 with respect to this same information. See Roth
v. U.S. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011); Simon v. Dep’t of Justice, 980
F.2d 782, 785 (D.C. Cir. 1994).

                                                 14
interest in disclosure against the [privacy] interest Congress intended the Exemption to protect.”

ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011) (internal quotation marks and

citation omitted); Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007); Beck v.

U.S. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). 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. U.S. Dep’t of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992)

(quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773

(1989)); see also Sussman, 494 F.3d at 1115. It is a FOIA requester’s obligation to articulate a

public interest sufficient to outweigh an individual’s privacy interest, and the public interest must

be significant. See Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004).


       Under Exemption 7(C), the FBI withholds “the names of and/or identifying information

of FBI [Special Agents (‘SAs’)] and support personnel who were responsible for conducting,

supervising, and/or maintaining the investigative activities reported in the documents responsive

to plaintiff’s request.” Hardy Decl. ¶ 45. The declarant explains that “FBI SAs conduct official

inquiries into violations of various criminal statutes and national security cases,” and in the

course of these duties “[t]hey come into contact with all strata of society” by, for example,

“conducting searches and making arrests, both of which result in reasonable but nonetheless

serious disturbances” in the lives of individuals “targeted by such law enforcement actions.” Id.

Such an individual might “carry a grudge which may last for years,” and may “seek revenge on

the agents involved in a particular investigation.” Id. Disclosure of the agents’ identities in

connection with a “particular investigation to which they have been assigned may seriously

prejudice their effectiveness in conducting other investigations,” and may subject them, “as


                                                 15
individuals, [to] unnecessary questioning as to the course of an investigation, whether or not they

are currently employed by the FBI.” Id. ¶ 44. Similarly, FBI support personnel “were assigned

to handle tasks related to the official investigation into plaintiff[’s activities], and “were, and

possibly are, in a position to access information regarding official law enforcement

investigations, and therefore could become targets of harassing inquires for unauthorized access

to investigations if their identities were released.” Id. ¶ 46. The same rationale is applied to non-

FBI federal government personnel, id. ¶ 50, and city, local, and state government employees, id.

¶ 53, whose names and identifying information appear in the responsive records.


        With respect to third parties of investigative interest, id. ¶ 47, those who provided

information to the FBI, id. ¶ 48, and those merely mentioned in the responsive records, id. ¶ 52,

the FBI’s declarant explains that disclosure of their identities in connection with a criminal

investigation could subject them to harassment, embarrassment, undue public attention, id. ¶ 47,

or to threats, intimidation, id.¶ 49, or other forms of reprisal, see id. ¶¶ 49, 52. The FBI identifies

no public interest to outweigh these third parties’ privacy interests. Id. ¶ 43; see id. ¶¶ 45-46, 49-

53.


        Plaintiff asserts that the FBI “is not properly using” the exemption. Pl.’s Opp’n at 8.

“[D]uring trial [he] was given . . . material . . . provided . . . by the Government,” and he is able

to identify “New York City Police Department statements . . . turned over to the F.B.I.,” and to

name the individual who provided each statement. Id. at 8-9. He argues that the FBI now is

asserting an exemption it “well know[s] do[es] not apply in this case.” Id. at 8. Plaintiff is

mistaken. The privacy interest at stake belongs to the individual, not the government agency, see

Reporters Comm., 489 U.S. at 763-65, and “individuals have a strong interest in not being



                                                  16
associated unwarrantedly with alleged criminal activity,” Stern v. FBI, 737 F.2d 84, 91-92 (D.C.

Cir. 1984). For example, a third party may testify in open court and maintain an interest in his

personal privacy. See, e.g., Jones v. FBI, 41 F.3d 238, 247 (6th Cir. 1994). And he maintains an

interest in his personal privacy even if the requester already knows, or is able to guess, his

identity. See Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1491 (D.C. Cir. 1984).


                                        iii. Exemption 7(D)


       Exemption 7(D) protects from disclosure records or information compiled for law

enforcement purposes that:

               could reasonably be expected to disclose the identity of a
               confidential source . . . [who] furnished information on a
               confidential basis, and, in the case of a record or information
               compiled by criminal law enforcement authority in the course of a
               criminal investigation . . ., information furnished by a confidential
               source.

5 U.S.C. § 552(b)(7)(D). There is no general “presumption that a source is confidential within

the meaning of 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 Justice v. Landano, 508 U.S.

165, 181 (1993). Rather, a source’s confidentiality must be determined on a case-by-case basis.

Id. at 179-80. “A source is confidential within the meaning of [E]xemption 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, 69 F.3d 1155, 1159

(D.C. Cir. 1995) (internal quotation marks and citation omitted). Notwithstanding plaintiff’s

challenge to the FBI’s reliance on Exemption 7(D) on the ground that, during his criminal trial,

he “was given . . . material with the names of the people [the FBI now] claim[s] are confidential

sources,” Mot. for Summ. J. at 5, the Court concludes that information properly is withheld


                                                 17
under implied and express assurances of confidentiality. Even if the identity of or information

provided by a source had been disclosed at trial, for example, a government agency still invokes

Exemption 7(D) to protect the source’s identity. See Davis, 968 F.2d at 1281 (“Even when the

source testifies in open court, as did the informant in this case, he does not thereby waive the

[government’s] right to invoke Exemption 7(D) to withhold . . . information furnished by a

confidential source not actually revealed in public.”) (citation and internal quotation marks

omitted) (brackets in original).

                               Implied Assurance of Confidentiality

       In this case, the FBI withholds “portions of interviews in which the release of information

could clearly identify the sources.” Hardy Decl. ¶ 58. According to the declarant, “[t]hese

sources provided valuable information that is detailed and singular in nature,” and disclosure of

their identities “is in direct contradiction to the interests of the FBI.” Id. (emphasis removed).

Specifically, if the FBI were forced to disclose the identities of its sources, “such disclosure

would have a chilling effect on the . . . cooperation of [these] and other future FBI confidential

sources.” Id.

       The nature of the crime investigated and informant’s relation to it are the most important

factors in determining whether implied confidentiality exists. Landano, 508 U.S. at 179-80;

Coleman v. FBI, 13 F. Supp. 2d 75, 82 (D.D.C. 1998) (finding that plaintiff’s conviction “of

numerous violent crimes” including murder, rape and kidnaping, as well as “the relation of the

witnesses thereto is precisely the type that the implied confidentiality exemption expressed in

Landano is designed to encompass”). The declarant has explained that the records at issue were

generated in the course of the “criminal investigation of plaintiff and the ‘Cream Team’ related

to gang and drug activity, and murder,” Hardy Decl. ¶ 41, and it is apparent that these sources



                                                 18
were close enough to these activities to provide “detailed and singular” information about them.

Id. ¶ 58. The Court accepts the declarant’s representations that “[t]he sensitivity of the

information, and the position of the sources, are such that it may be inferred that the information

was provided with the expectation of confidentiality.” Id.

                                  Express Assurance of Confidentiality

       Where a law enforcement agency relies on express assurances of confidentiality to justify

its decision to withhold information under Exemption 7(D), it must offer “probative evidence

that the source did in fact receive an express grant of confidentiality.” Campbell v. U.S. Dep’t of

Justice, 164 F.3d 20, 34 (D.C. Cir. 1998) (quoting Davin v. U.S. Dep’t of Justice, 60 F.3d 1043,

1061 (3d Cir. 1995)). Such evidence may take many forms, such as notations on the face of the

withheld document, an official’s personal knowledge about the source, a statement from the

source, or documents discussing practices or policies for dealing with the source at issue or

similarly situated sources. Id.


       Here, the FBI withholds “the name, identifying data and information provided by several

individuals” who “assisted in the criminal investigation of plaintiff and the ‘Cream Team’

conducted by the FBI and the New York Police Department with an ‘express’ assurance of

confidentiality . . . evidenced by the words ‘PROTECT IDENTITY’” where each individual’s

name appears in the file. Hardy Decl. ¶ 59. The Court concurs that these “words are a positive

indication of an express assurance of confidentiality,” and accepts the declarant’s assertion that

“[a]ll of the individuals would reasonably fear that disclosure of their identity [sic] would place

them in danger.” Id. Moreover, as the declarant explains, “[i]f the FBI were to disclose the

identities of confidential sources that entered into express agreements, the revelation would have




                                                  19
a chilling effect on the activities and cooperation of other FBI confidential sources in the future.”

Id.


                                   Local Grand Jury Testimony


       The FBI withholds under Exemption 7(D) “the names, identifying data and information

of individuals . . . subpoenaed to testify during a local grand jury” and “information that

identifies specific records subpoenaed by the local Grand Jury.” Hardy Decl. ¶ 60. Disclosure

of such information, the declarant asserts, “would clearly violate the secrecy of the grand jury

proceedings and could reveal the inner workings of the local grand jury that considered the case

which was used during the FBI investigation.” Id. Missing from the declaration, however, is

any indication that the information withheld pertains to the identity of or information provided

by a confidential source. The Court, therefore, is unable to determine whether Exemption 7(D)

applies to this local grand jury information.


                                        iv. Exemption 7(E)


       Exemption 7(E) protects from disclosure law enforcement records “to the extent that the

production of such . . . information . . . would disclose techniques and procedures for law

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

investigations or prosecutions if such disclosure could reasonably be expected to risk

circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). “The first clause of Exemption 7(E) affords

‘categorical’ protection for ‘techniques and procedures’ used in law enforcement investigations

or prosecutions.” Pub. Emps. for Envtl. Responsibility v. U.S. Section Int’l Boundary & Water

Comm’n, No. 11-cv-261, 2012 WL 933709, at *16 (D.D.C. Mar. 20, 2012) (citing Showing



                                                 20
Animals Respect and Kindness v. U.S. Dep’t of Interior, 730 F. Supp. 2d 180, 199-200 (D.D.C.

2010)).


          “Notwithstanding the categorical protection to law enforcement techniques and

procedures afforded under the first clause of Exemption 7(E), see Allard K. Lowenstein Int’l

Human Rights Project v. Dep’t of Homeland Sec., 626 F.3d 678, 681 (2d Cir. 2010) (“The

sentence structure of Exemption (b)(7)(E) indicates that the qualifying phrase (‘if such disclosure

could reasonably be expected to risk circumvention of the law’) modifies only ‘guidelines’ and

not ‘techniques and procedures.’”), no agency can rely on a declaration written in vague terms or

in a conclusory manner. Davis v. FBI, 770 F. Supp. 2d 93, 100 (D.D.C. 2011) (concluding that

declaration’s “generic description of the documents as “prosecution memoranda . . . detailing

evidence gathering efforts and prosecution strategies in [plaintiff’s] criminal case” did not

explain adequately the agency’s decision to withhold information under Exemption 7(E)). Here,

the FBI withholds “procedures and techniques used by FBI agents to conduct criminal

investigations,” the disclosure of which “could enable subjects of FBI investigations to

circumvent similar currently used techniques and procedures by law enforcement.” Hardy Decl.

¶ 62. “To convince the Court that the information withheld is subject to the exemption, the FBI

cannot rely upon the vaguely worded categorical description it has provided,” and must instead

“provide evidence from which the Court can deduce something of the nature of the techniques in

question.” Clemente v. FBI, 741 F. Supp. 2d 64, 88 (D.D.C. 2010).


                                       III. CONCLUSION

          Defendants have shown that the FBI has conducted a reasonable search for records

responsive to plaintiff’s FOIA request and that it properly withholds records under Exemptions



                                                 21
7(C) and 7(D) with respect to sources who provided information to the FBI under implied and

express assurances of confidentiality. In these respects, defendants’ motion will be granted in

part. However, defendants have not demonstrated compliance with the FOIA by the EOUSA

and the BOP, and have not shown that the FBI properly withholds information under Exemptions

5, 7(D) (with respect to local grand jury testimony), and 7(E). In these respects, defendants’

motion for summary judgment will be denied in part without prejudice. The Court defers its

determination on segregability. Defendants may file a renewed motion for summary judgment

based on additional undisputed facts or by providing additional legal arguments. An Order

accompanies this Memorandum Opinion. An Order accompanies this Memorandum Opinion.



                      Signed:         EMMET G. SULLIVAN
                                      United States District Judge

                      Dated:          March 2, 2013




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