                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



LAURA SENNETT,

       Plaintiff,
               v.                                        Civil Action No. 12-495 (JEB)
DEPARTMENT OF JUSTICE,

       Defendant.


                                 MEMORANDUM OPINION

       Plaintiff Laura Sennett – a photojournalist who claims a special interest in covering

protests, political demonstrations, and “grassroots activism” – submitted a request to the Federal

Bureau of Investigation seeking “files, correspondence, or other records concerning [herself].”

After a search and review of documents, the agency produced more than 1,000 pages of

responsive records but withheld and redacted a number of records pursuant to specific provisions

of the Freedom of Information Act and the Privacy Act. Unsatisfied, Plaintiff brought this suit

challenging the sufficiency of Defendant’s search, as well as the propriety of many of its

withholdings. Arguing that it has complied with its obligations, Defendant now moves for

summary judgment. Because the Bureau’s search was adequate and its withholdings largely

proper, the Court will grant Defendant’s Motion for the most part.

I.     Background

       There are a number of background facts that appear to be undisputed. In the early

morning hours of April 12, 2008, protesters gathered at the Four Seasons Hotel in Georgetown

for a demonstration during the International Monetary Fund’s annual spring meeting. See

Compl., ¶¶ 7-8. Sennett attended with the purpose of photographing the event. See id., ¶ 8.

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Following the demonstration and acts of vandalism surrounding it, a warrant to search Sennett’s

home was obtained, which was executed on September 23, 2008. See Sennett v. United States,

667 F.3d 531, 532-36 (4th Cir. 2012) (describing demonstration and subsequent search). The

officers who conducted the search seized “more than 7,000 pictures, two computers, several

cameras and other camera equipment.” Compl., ¶ 9.

         Sennett thereafter submitted the following request to the FBI seeking records related to

the search: “This is a request for records under the Privacy Act. I request copies of all files,

correspondence, or other records concerning myself. Please search both your automated indices

and the older general (manual) indices. To prove my identity, I am enclosing a completed form

DOJ-361.” Mot., Declaration of David M. Hardy, Exh. A (9/5/2010 Sennett Request). On

March 18, 2011, the FBI notified Plaintiff that 280 pages of records had been reviewed and 213

pages were being released in full or in part pursuant to specific provisions of FOIA and the

Privacy Act. See Hardy Decl., Exh. B (3/18/2011 FOIA Response). These records were located

as a result of a search of the indices to the FBI’s Central Records System. See Hardy Decl., ¶¶ 6,

21-22.

         Sennett administratively appealed the FBI’s determination on the release and withholding

of documents, and the agency’s decision was subsequently affirmed. See id., Exh. C (3/23/11

Appeal); Exh. E (Decision Affirming Appeal). Sennett then filed this suit on March 30, 2012,

alleging violations of FOIA and the Privacy Act. See Complaint, ¶¶ 4, 12-19. Before a briefing

schedule was set, Sennett received a letter from the FBI informing her that

                [a]s a result of your litigation, we conducted a new search
                of the indices to the Central Records System at FBI
                Headquarters. The FBI identified one “197” file that
                appears to be responsive to you as it pertains to Civil
                Action Number 1:10-cv-01055, Laura Sennett v. United
                States, et al., U.S. District Court for the Eastern District of

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               Virginia. A “197” file is categorized as a civil litigation
               file that contains material concerning the civil action that
               you lodged against the U.S. government. The FBI does not
               routinely process 197 files unless the requester specifically
               requests us to do so because the file contains material sent
               to and from the plaintiff and/or documents filed before the
               court.

See Hardy Decl., Exh. F (7/11/2012 FBI Letter). Sennett requested that these documents be

produced, and they were released to her on February 28, 2013. See id., Exh. G (7/20/13 Letter

Requesting 197 File); Exh. H (2/28/13 FOIA Response). For this second production, 1,695

pages were reviewed, and 1,076 pages were released in full or in part. As with its previous

production, the FBI withheld a number of documents, this time pursuant to the Privacy Act,

FOIA exemptions, and a sealing Order in a civil case Sennett had filed in the Eastern District of

Virginia. See 2/28/13 FOIA Response.

       Defendant then filed a Motion for Summary Judgment on June 3, 2013, accompanied by

a declaration describing the agency’s search efforts and withholdings. See Hardy Decl. The

matter is now fully briefed and ripe for decision.

II.    Legal Standard

       Summary judgment may be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at

895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477

U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely



                                                 3
disputed must support the assertion” by “citing to particular parts of materials in the record” or

“showing that the materials cited do not establish the absence or presence of a genuine dispute,

or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.

56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of

material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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

See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a

court may grant summary judgment to a FOIA defendant based solely on information provided

in an agency’s affidavits or declarations when they “describe the justifications for nondisclosure

with reasonably specific detail, demonstrate that the information withheld logically falls within

the claimed exemption, and are not controverted by either contrary evidence in the record nor by

evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)

(citation omitted). Such affidavits or declarations “are accorded a presumption of good faith,

which cannot be rebutted by purely speculative claims about the existence and discoverability of

other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal

quotation marks omitted). “Unlike the review of other agency action that must be upheld if

supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the

burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter

de novo.’” Dep’t of Justice v. Reporters Com. for the Freedom of the Press, 489 U.S. 749, 755

(1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

III.   Analysis

       Defendant maintains that summary judgment is proper because its search was reasonably

calculated to return relevant records, it released all reasonably segregable material, and its



                                                  4
withholdings were proper under a number of FOIA exemptions. See Mot. at 2. Plaintiff raises

three central challenges in response. First, Sennett claims that Defendant failed to conduct an

adequate search for responsive records because it did not search its electronic surveillance

indices. See Opp. at 11. Second, she asserts that the FBI failed to release reasonably segregable

records. See id. And finally, she contends that Defendant improperly withheld multiple records

pursuant to three specific FOIA exemptions. See id. at 1-11. Finding that the FBI has

discharged almost all of its responsibilities on those three fronts, the Court will substantially

grant Defendant’s Motion.

       A. Adequacy of Search

       FOIA requires government agencies to describe their searches in enough detail for a court

to determine whether the search was sufficiently exhaustive to satisfy the Act. Nation Magazine,

Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995); Oglesby v.

U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “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.’” Valencia-Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C.

Cir. 1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also

Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). “[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. Dep’t of Justice, 745 F.2d

1476, 1485 (D.C. Cir. 1984) (emphasis in original). The adequacy of an agency’s search for

documents requested under FOIA “is judged by a standard of reasonableness and depends, not

surprisingly, upon the facts of each case.” Id. To meet its burden, the agency may submit

affidavits or declarations that explain the scope and method of its search “in reasonable detail.”



                                                  5
Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). Absent contrary evidence, such affidavits or

declarations are sufficient to show that an agency complied with FOIA. See id. “If, however,

the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the

agency is not proper.” Truitt, 897 F.2d at 542.

        The sole issue Plaintiff raises with respect to the adequacy of the FBI’s search is that the

Bureau did not look in its electronic surveillance (ELSUR) files for responsive records. See

Opp. at 11. Defendant maintains that it was not required to search this source because it was not

reasonably likely that the ELSUR indices would contain responsive records. See Reply at 16-18.

In so asserting, it provides additional information about the indices and the agency’s search,

including:

             •   “The FBI’s Electronic Surveillance (‘ELSUR’) Indices, a separate
                 system of records from the CRS, are used to maintain information
                 on subjects whose electronic and/or voice communications have
                 been intercepted as a result of electronic surveillance conducted by
                 the FBI,” Reply, Att. (Second Declaration of David M. Hardy), ¶
                 6;

             •   “The ELSUR Indices are comprised of four types of records:
                 Principal; Proprietary Interest; Intercept; and Reference records,”
                 id., ¶ 7 (including sub-paragraphs providing further detail on each
                 type of record); and

             •   “In responding to FOIA requests, the FBI searches those locations
                 where it determines responsive records are likely to be found. Most
                 FBI cases do not involve electronic surveillance, and so it is not
                 reasonably likely that responsive records will be found in the
                 ELSUR Indices in most instances. Accordingly, the FBI only
                 searches those indices when specifically asked to do so by a
                 requester or when there is some indication that there may be
                 responsive records in the indices, such as when there are references
                 in the investigative file to electronic surveillance.”

Id., ¶ 8.




                                                  6
       The declaration further explains that there was no reason to search the ELSUR indices

here because “Plaintiff did not request that the FBI search the ELSUR Indices for responsive

records,” id., ¶ 9; “[m]oreover, the FBI did not find any indication in the investigative files

containing information responsive to plaintiff’s FOIA request that the investigations involved

electronic surveillance. The video that plaintiff references in her response is a security video

from the Four Seasons Hotel, not a video resulting from electronic surveillance conducted by the

FBI.” Id., ¶ 10.

       Based on the facts here and Defendant’s explanation as to why it was unlikely that

responsive records would be located in the electronic surveillance indices, the Court finds that

the agency’s decision not to search this source was reasonable. See Am. Immigration Council v.

U.S. Dep’t of Homeland Sec., 905 F. Supp. 2d 206, 214-215 (D.D.C. 2012) (agency’s

explanation sufficient where it had “justifiably conclude[d]” that challenged source probably did

not hold responsive records); Salas v. Office of Inspector Gen., 577 F. Supp. 2d 105, 110

(D.D.C. 2008) (acknowledging agency was not required to search every records system and

finding search adequate where “declarant adequately explains the agency’s reasons for limiting

the search to the [specific] database”). A plaintiff’s conjecture regarding possible sources that

have not been searched is not sufficient to undermine an agency’s position that responsive

documents would not be contained in a particular database. See Nicholls v. U.S. Office of

Personnel Mgmt., 863 F. Supp. 2d 4, 10 (D.D.C. 2012).

       Because no other objections remain on this issue, Defendant is entitled to summary

judgment on the adequacy of the search.




                                                  7
       B. Segregability

       Plaintiff’s second objection arises from the Hardy Declaration’s purported “fail[ure] to

analyze the segregability of the redacted documents, other than in conclusory fashion.” Opp. at

11. Defendant responds that it is entitled to a presumption of compliance with the segregability

requirement and that Plaintiff has failed to provide the “quantum of evidence” necessary to rebut

it. See Reply at 19. The Court agrees.

       While the government is “entitled to a presumption that [it] complied with the obligation

to disclose reasonably segregable material,” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013),

this presumption of compliance does not obviate the government’s obligation to carry its

evidentiary burden and fully explain its decisions on segregability. See Mead Data Cent., Inc. v.

U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). The agency must provide “a

detailed justification and not just conclusory statements to demonstrate that all reasonably

segregable information has been released.” Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C.

2010) (internal quotation marks omitted); see also Armstrong v. Exec. Office of the President, 97

F.3d 575, 578 (D.C. Cir. 1996) (determining government affidavits explained nonsegregability of

documents with “reasonable specificity”). “Reasonable specificity” can be established through a

“combination of the Vaughn index and [agency] affidavits.” Johnson v. Exec. Office for U.S.

Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002).

       The Hardy Declaration maintains:

           •   “Every effort was made to provide plaintiff with all material in the
               public domain and with all reasonably segregable portions of
               releasable material. No reasonably segregable, nonexempt portions
               have been withheld from plaintiff. To further describe the
               information withheld could identify the very material which the
               FBI seeks to protect,” Hardy Decl., ¶ 26;




                                                 8
           •   “The coded, Bates-numbered pages together with this declaration
               demonstrate that all material withheld is exempt from disclosure
               pursuant to FOIA exemptions, or is so intertwined with protected
               material that segregation is not possible without revealing the
               underlying protected material,” id., ¶ 27;

           •   “The FBI has processed and released all segregable information
               from documents responsive to plaintiff's FOIA/Privacy Act request
               that are subject to FOIA, and has properly withheld exempt
               information pursuant to FOIA Exemptions 1, 3, 5, 6, 7(A), 7(C),
               7(D), and 7(E),” id., ¶ 81; and

           •   “After extensive review of the documents at issue, I have
               determined that there is no further reasonably segregable
               information that can be released without revealing exempt
               information.”

Id.

       Although some of this language may appear generic, having reviewed the redacted

documents and the Hardy Declaration, the Court finds that no segregability problem exists here.

The documents have careful and pinpointed redactions of names, words, clauses, and sentences.

While a number of other documents have been withheld in their entirety, there is nothing to

suggest that there is material that could have been released on these pages. See, e.g., Mot., Exh.

I (FBI’s Production of Records in Response to FOIA Request), part I, at 110 (explaining Sennett

1660-1670 were being withheld in their entirety where numerous exemptions applied, including

the exemption for pending enforcement proceedings, (7)(A)). The Bureau, moreover, deserves

the benefit of the doubt when it has painstakingly segregated material on the produced

documents the Court has reviewed. Because the Court finds that the FBI has produced all

reasonably segregable materials and a supplemental declaration further addressing the issue of

segregability is unnecessary, the Court grants Defendant’s Motion on this issue.




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       C. Propriety of Defendant’s Withholdings

       Turning now to the applicability of the exemptions claimed, the Court will begin with

some general FOIA law and then discuss each exemption separately.

               1.      Background

       FOIA provides that “each agency, upon any request for records which (i) reasonably

describes such records and (ii) is made in accordance with published rules . . . , shall make the

records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Nine categories of

information are exempt from FOIA’s broad rules of disclosure. 5 U.S.C. § 552(b)(1)-(9). These

exemptions are to be narrowly construed, see Dep’t of Air Force v. Rose, 425 U.S. 352, 361

(1976), and the reviewing court must bear in mind that FOIA mandates a “strong presumption in

favor of disclosure.” Dep’t of State v. Ray, 502 U.S. 164, 173 (1991); Nat’l Ass’n of Home

Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002). This Court, accordingly, can compel the

release of any records that do not satisfy the requirements of at least one exemption. See

Reporters Com. for Freedom of the Press, 489 U.S. at 755.

       FOIA was drafted with the objective of affording the public maximum access to most

government records. See Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). The

government, as a result, bears the burden of demonstrating that at least one exemption applies.

See id. In order to assist a court in its de novo review of the withholdings and to allow the party

seeking access to documents to engage in effective advocacy, the government must furnish

“detailed and specific information demonstrating ‘that material withheld is logically within the

domain of the exemption claimed.’” Campbell v. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir.

1998) (quoting King v. U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)). This allows

for “as full a public record as possible, concerning the nature of the documents and the



                                                10
justification for nondisclosure.” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381,

1384 (D.C. Cir. 1979). Time and again, courts in this Circuit have stressed that the government

cannot justify its withholdings on the basis of summary statements that merely reiterate legal

standards or offer “far-ranging category definitions for information.” King, 830 F.2d at 221; see

also Campbell, 164 F.3d at 30 (emphasizing that an agency’s explanations will not suffice if they

“‘are conclusory, merely recit[e] statutory standards, or if they are too vague or sweeping’”)

(quoting Hayden, 608 F.2d at 1387).

       While FOIA’s individual exemptions impose their own tailored evidentiary burden, as a

starting point, the government must meet five overarching requirements for each withholding.

See King, 830 F.2d at 224. The government must:

               (1) [I]dentify the document, by type and location in the body of
               documents requested; (2) note that [a particular exemption] is
               claimed; (3) describe the document withheld or any redacted
               portion thereof, disclosing as much information as possible without
               thwarting the exemption’s purpose; (4) explain how this material
               falls within one or more of the categories . . . ; and [if the
               exemption requires a showing of harm] (5) explain how disclosure
               of the material in question would cause the requisite degree of
               harm.

Id.

       As the D.C. Circuit noted in Lykins v. Dep’t of Justice, 725 F.2d 1455 (D.C. Cir. 1984),

the government’s documentary obligations not only enable the reviewing court to make an

informed and accurate determination, but they also allow the adversary system to operate

effectively and encourage transparency by “forc[ing] the government to analyze carefully any

material withheld.” Id. at 1463. Admittedly, this evidentiary burden is likely to create

significant costs for government agencies as they respond to FOIA requests; however, “[t]he




                                                11
costs must be borne . . . if the congressional policy embodied in FOIA is to be well served.”

Senate of the Com. of Puerto Rico v. U.S. Dep’t of Justice, 823 F.2d 574, 587 (D.C. Cir. 1987).

        Against this backdrop, the Court will now consider the specific exemptions challenged by

Plaintiff.

               2.      Challenged Exemptions

        While Defendant relies on numerous exemptions, Plaintiff challenges withholdings

pursuant to only three: Exemptions 1 (Classified Information), 3 (Information Protected by

Statute), and 7(D) (Confidential Source Information). See Opp. at 1-11. Because Plaintiff raises

no objection with respect to the remaining exemptions – namely, Exemptions 5 (Privileged

Information), 6 and 7(C) (Clearly Unwarranted Invasion of Privacy and Unwarranted Invasion of

Personal Privacy), 7(A) (Pending Enforcement Proceedings), and 7(E) (Law Enforcement

Investigative Techniques and Procedures) – the Court will deem any challenges to documents

withheld pursuant to those exemptions to be forfeited. See Hopkins v. Women’s Div., Gen. Bd.

of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit

that when a plaintiff files an opposition to a dispositive motion and addresses only certain

arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to

address as conceded.”), aff’d 98 F. App’x 8 (D.C. Cir. 2004).

                       a.      Exemption 1

        Plaintiff begins by attacking the withholding of materials pursuant to Exemption 1. This

exemption applies to materials that are “specifically authorized under criteria established by an

Executive order to be kept secret in the interest of national defense or foreign policy and . . . are

in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). An agency

may invoke Exemption 1 to withhold records “only if it complies with classification procedures



                                                  12
established by the relevant executive order and withholds only such material as conforms to the

order’s substantive criteria for classification.” King, 830 F.2d at 214; see also Lesar v. Dep’t of

Justice, 636 F.2d 472, 483 (D.C. Cir. 1980) (“To be classified properly, a document must be

classified in accordance with the procedural criteria of the governing Executive Order as well as

its substantive terms.”).

       While the Hardy Declaration discusses in detail how the FBI complied with the

requirements of Exemption 1, see Hardy Decl., ¶¶ 31-39, the Court need not analyze such

compliance. This is because all relevant documents covered by Exemption 1 were also withheld

under Exemption 7(E):

               The classified information withheld on Sennett-1622, 1660-1670,
               and 1676-1682 contains detailed intelligence activity information
               gathered or compiled by the FBI about a specific individual or
               organization of national security interest. The disclosure of this
               information could reasonably be expected to cause serious damage
               to the national security, as it would: (a) reveal the actual
               intelligence activity or method utilized by the FBI against a
               specific target; (b) disclose the intelligence-gathering capabilities
               of the method; and (c) provide an assessment of the intelligence
               source penetration of a specific target during a specific period of
               time. This information is properly classified at the “Secret” level,
               withheld pursuant to E.O. 13526, § 1.4(c), and is exempt from
               disclosure pursuant to Exemption 1. The FBI also protected this
               information pursuant to FOIA Exemption 7(E), as discussed infra.

Id., ¶ 39 (emphasis added). Plaintiff does not separately challenge whether the documents were

properly redacted or withheld pursuant to Exemption 7(E). Because there is an independent,

unchallenged exemption upon which these few documents could be withheld, the Court will not

consider the Exemption 1 challenge.

                       b.      Exemption 3

        Exemption 3 covers records “specifically exempted from disclosure by statute . . .

[provided that such statute either] (A)(i) requires that the matters be withheld from the public in

                                                 13
such a manner as to leave no discretion on the issue; or (A)(ii) establishes particular criteria for

withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3).

Defendant invokes this exemption based on the Pen Register statute, 18 U.S.C. § 3123, and

Federal Rule of Criminal Procedure 6(e), which governs grand jury information. Both the statute

and the rule leave the Court no discretion.

        First, as to pen-register information, the FBI contends that it “properly applied

Exemption 3 to withhold the identities and phone numbers of the individuals subject to pen

registers in this case, because it is precluded from disclosing such information pursuant to 18

U.S.C. § 3123.” See Hardy Decl., ¶ 41; see also id. n.7 (citing specific pages subject to this

exemption). The nondisclosure provision of this statute states that

               [a]n order authorizing or approving the installation and use of a
               pen register or a trap and trace device shall direct that (1) the order
               be sealed until otherwise ordered by the court; and (2) the person
               owning or leasing the line or other facility to which the pen register
               or a trap and trace device is attached, or applied, or who is
               obligated by the order to provide assistance to the applicant, not
               disclose the existence of the pen register or trap and trace device or
               the existence of the investigation to the listed subscriber, or to any
               other person, unless or until otherwise ordered by the court.”

§ 3123(d).

       Plaintiff contends that this statute cannot support withholdings pursuant to Exemption 3.

See Opp. at 4-7. She offers no authority, however, for such a position, see Opp. at 7, nor does

she explain why other district courts have erred in holding the contrary. See, e.g., Brown v. FBI,

873 F. Supp. 2d 388, 401 (D.D.C. 2012) (pen-register information properly withheld under

exemption 3); Roberts v. FBI, 845 F. Supp. 2d 96, 101-102 (D.D.C. 2012) (same); Manna v.

Dep’t of Justice, No. 93-81, 1994 WL 808070, at *6-7 (D.N.J. April 13, 1994) (same).




                                                 14
       Even if this statute could protect such information, Plaintiff maintains Defendant should

be ordered to produce a more detailed Vaughn declaration explaining whether the pen-register

orders in question were under seal and specifying what material was being withheld pursuant to

this exemption. See Opp. at 4-7. Both pieces of information, however, have already been set

forth by the FBI. The Hardy Declaration clearly states that the pen-register information was

“subject to a sealing order by the court.” See Hardy Decl., n.7. Additionally, it describes the

material being withheld as information that would reveal “the identities and phone numbers of

the individuals subject to pen registers in this case.” See id. ¶ 41. As the material Plaintiff seeks

to have disclosed has already been provided, no supplementation is necessary.

       Second, the FBI relies on Federal Rule of Criminal Procedure 6(e), which bars the

disclosure of matters occurring before a grand jury. See Fed. R. Crim. P. 6(e)(2)(B). Because it

was affirmatively enacted by Congress, Rule 6(e) is recognized as a “statute” for Exemption 3

purposes. See Fund for Constitutional Gov’t. v. Nat’l Archives & Records Serv., 656 F.2d 856,

867 (D.C. Cir. 1981). The Rule’s grand-jury-secrecy requirement is applied broadly and

embraces any information that “tend[s] to reveal some secret aspect of the grand jury’s

investigation, [including] the identities of witnesses or jurors, the substance of testimony, the

strategy or direction of the investigation, the deliberations or questions of jurors, and the like.”

Lopez v. Dep’t. of Justice, 393 F.3d 1345, 1349 (D.C. Cir. 2005) (internal quotation marks

omitted). In the absence of a statutory exception to the general presumption of grand jury

secrecy, Rule 6 is “quite clear that disclosure of matters occurring before the grand jury is the

exception and not the rule,” and “the rule’s ban on disclosure is for FOIA purposes absolute and

falls within . . . Exemption 3.” Fund for Constitutional Gov’t., 656 F.2d at 868.




                                                  15
       Defendant describes the documents withheld under this exemption in the following

manner:

               In the investigative files responsive to plaintiffs request,
               information that reveals matters occurring before a Federal Grand
               Jury has been withheld pursuant to Exemption 3, in conjunction
               with Rule 6(e). This information consists of the names of
               recipients of Federal Grand Jury subpoenas; information that
               identifies specific records subpoenaed by the Federal Grand Jury;
               and copies of specific records received in response to Federal
               Grand Jury subpoenas. Any disclosure of this information would
               clearly violate the secrecy of the grand jury proceedings and could
               reveal the inner workings of the Federal Grand Jury, and thus, the
               FBI is precluded from disclosing it. Accordingly, the FBI properly
               withheld this information pursuant to Exemption 3, in conjunction
               with Rule 6(e).

Hardy Decl., ¶ 42; see also id. n.8 (identifying pages withheld pursuant to this exemption).

       Plaintiff contends that “the government did not provide any detail to allow this court to

determine whether the specific records at issue in this case would in fact reveal the inner

workings of the grand jury,” and she urges the Court to conduct an inquiry into whether such a

nexus exists. See Opp. at 9. Additionally, Plaintiff maintains that the “special circumstances”

exception to grand jury secrecy may require disclosure of these materials, as the information is

“undoubtedly of historical interest.” See id. at 10. This exception – rooted in the court’s

inherent supervisory authority over court records – has permitted the release of documents that

are of special “historical significance,” such as the grand jury testimony of President Richard

Nixon. See In re Nichter, No. 12-MC-74, 2013 WL 2544410, at *5-7 (D.D.C. June 11, 2013)

(describing exception).

       Defendant has supplemented its explanation regarding these documents in the Second

Hardy Declaration as follows:

               To clarify, documents obtained by the FBI independent of the
               grand jury were not withheld pursuant to Exemption 3, in

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               conjunction with Rule 6(e) of the Federal Rules of Civil Procedure.
               Rather, to reiterate what I stated in my previous declaration in this
               case, see Dkt. No. 18 at ¶ 42, the FBI relied on Exemption 3, in
               conjunction with Rule 6(e), to withhold records that were received
               in response to a grand jury subpoena because disclosure of such
               information – as well as the identities of persons and the specific
               records subpoenaed by the grand jury – would reveal the focus and
               scope of the grand jury’s investigation, thus revealing the inner
               workings of the grand jury and violating the secrecy of grand jury
               proceedings.

Id., ¶ 5.

        The documents Defendant describes fall squarely within this exemption because they

would “tend to reveal some secret aspect of the grand jury’s investigation [of] such matters,”

Senate of Puerto Rico, 823 F.2d at 582 (internal quotation marks omitted), and are not merely

“information coincidentally before the grand jury.” Fund for Constitutional Gov’t, 656 F.2d at

870; see also Light v. Dep’t of Justice, No. 12-1660, 2013 WL 3742496, 8 (D.D.C. July 17,

2013) (records subpoenaed by grand jury exempt under Exemption 3); Georgacarakos v. FBI,

908 F. Supp. 2d 176, 182 (D.D.C. 2012) (“information that identifies specific records or

evidence subpoenaed by the Federal Grand Jury” protected under Exemption 3); Singh v. FBI,

574 F. Supp. 2d 32, 45 (D.D.C. 2008) (finding records subpoenaed by grand jury were within

scope of Exemption 3).

        Additionally, the Court rejects Plaintiff’s invitation to recognize the “special

circumstances” doctrine here, as she has failed to provide the Court with any authority to suggest

that the facts in this case implicate that rare exception. See, e.g., In re Nichter, 2013 WL

2544410, at *5-7 (finding special circumstances did not support disclosure of materials related to

grand jury proceeding); In re Shepard, 800 F. Supp. 2d 37, 40 (D.D.C. 2011) (cautioning that

exception “applies only in exceptional circumstances, requiring a nuanced and fact-intensive

assessment,” and “is not intended for indiscriminate application”).

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       The Court will thus grant judgment in Defendant’s favor as to this exemption.

                       c.      Exemption 7(D)

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

enforcement purposes . . . to the extent that the production of such law enforcement records or

information . . . 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). “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, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (internal quotation

marks omitted).

       “[I]t is not enough for the [FBI] to claim that all sources providing information in the

course of a criminal investigation do so on a confidential basis.” Roth v. Dep’t of Justice, 642

F.3d 1161, 1184 (D.C. Cir. 2011). The analysis must be more searching. For example,

               [w]hen no express assurance of confidentiality exists, courts
               consider a number of factors to determine whether the source
               nonetheless spoke with an understanding that the communication
               would remain confidential. These factors include the character of
               the crime at issue, the source’s relation to the crime, whether the
               source received payment, and 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. Even
               when the FBI contends that a source received an express assurance
               of confidentiality, it must, in order to permit meaningful judicial
               review, present sufficient evidence that such an assurance was in
               fact given.

Id. (citations and internal quotation marks omitted). It is also important to note that, unlike

Exemption 7(C), “Exemption 7(D) requires no balancing of public and private interests. If the
                                                  18
FBI’s production of criminal investigative records ‘could reasonably be expected to disclose the

identity of a confidential source’ or ‘information furnished by’ such a source, that ends the

matter, and the FBI is entitled to withhold the records under Exemption 7(D).” Id. at 1184-85

(citation omitted) (quoting 5 U.S.C. § 552(b)(7)(D)).

       The Hardy Declaration acknowledges that there was no express assurance here; instead, it

relies on inferred confidentiality. See Hardy Decl., ¶ 70. After describing generally the way in

which confidential sources assist the FBI and the need for such sources to remain confidential,

see id., ¶¶ 68-69, the Declaration then turns to a more detailed discussion of the specific

information withheld here:

               In Category (b)(7)(D)-1, the FBI protected the names, identifying
               information for, and information provided by third parties under
               circumstances in which confidentiality can be inferred. These third
               parties provided information concerning the activities of subjects
               who were of investigative interest to the FBI or other law
               enforcement agencies. These third party sources provided specific
               detailed information that is singular in nature concerning the
               activities of certain subjects regarding the FBI’s investigation. The
               disclosure of the identities of these sources and the information
               they provided could have disastrous consequences because
               disclosure could subject these third parties, as well as their
               families, to embarrassment, humiliation, and/or physical or mental
               harm. These third parties provided information of value to the FBI
               concerning its investigation, and in doing so, have placed
               themselves in harm’s way should their identity and cooperation
               with the FBI become known.              Specifically, in the FBI’s
               experience, sources providing information to the FBI about
               extremist activities, such as anarchist extremism, do so at great
               peril to themselves and have faced retaliation and threats
               (including death threats) when their assistance to the FBI has been
               publicly disclosed. Under these circumstances, the third parties
               had reason to believe that their identities and the information they
               provided would not be publicly revealed by the FBI in response to
               FOIA or Privacy Act requests. Thus, the FBI implicitly granted
               these third parties confidentiality with respect to their cooperation
               in the investigation(s), and properly protected the sources’
               identities and the information they provided pursuant to Exemption
               7(D).

                                                 19
Id., ¶ 70.

        While recognizing the FBI’s concerns in divulging too much information regarding its

confidential sources, the Court agrees with Sennett that the details in this description “are so

sparse that Plaintiff does not have” sufficient information to challenge whether the circumstances

support an inference of confidentiality. See Opp. at 11. While the FBI has explained the

character of the crime at issue, it has not provided any information on the other Roth factors. At

a minimum, there must be some mention of the source’s relation to the crime. See Miller v.

Dep’t of Justice, 872 F. Supp. 2d 12, 27 (D.D.C. 2012) (“[t]he nature of the crime investigated

and informant’s relation to it are the most important factors in determining whether implied

confidentiality exists”). The Court appreciates the importance of protecting confidential sources

and does not anticipate that the additional disclosures will be particularly burdensome. That

said, the Court cannot sanction the withholdings under Exemption 7(D) as the record now stands.

Defendant shall therefore release the documents withheld pursuant to this exemption or file a

subsequent summary judgment motion supported by adequate declarations.

        D. Privacy Act

        Although the FBI claimed the protection of Privacy Act Exemption j(2) in the documents

released to Sennett, this exemption was not, in fact, used to justify the withholding of any

information challenged here. See Hardy Decl., ¶ 25 (stating that “the FBI processed documents

responsive to her request under the FOIA to achieve maximum disclosure”). Therefore, this

Court does not reach the issue of the propriety of the FBI’s invocation of Privacy Act

Exemption (j)(2).




                                                 20
IV.    Conclusion

       For the forgoing reasons, the Court will grant Defendant’s Motion for Summary

Judgment in substantial part and deny it as to Exemption 7(D) only. A separate Order consistent

with this Opinion will issue this day.

                                                   /s/ James E. Boasberg
                                                   JAMES E. BOASBERG
                                                   United States District Judge
Date: August 27, 2013




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