                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                                     )
MARTY LORENZO WRIGHT,                                )
                                                     )
               Plaintiff,                            )
                                                     )
               v.                                    )       Civil Action No. 14-558 (ESH)
                                                     )
UNITED STATES DEPARTMENT                             )
OF JUSTICE,                                          )
                                                     )
               Defendant.                            )
                                                     )

                                 MEMORANDUM OPINION

       Plaintiff Marty Lorenzo Wright brings this action against the United States Department of

Justice, alleging that the Executive Office for United States Attorneys (“EOUSA”) violated the

Freedom of Information Act, 5 U.S.C. § 552 et seq. (“FOIA”), by failing to conduct a search for

documents responsive to his FOIA request. (Compl. [ECF No. 2] (“Compl.”) ¶ 9.) Before this

Court are defendant’s motion for summary judgment and plaintiff’s cross-motion for summary

judgment. (Mem. of P. & A. in Supp. of Mot. for Summ. J. [ECF No. 10] (“Def.’s Mot.”); Pl.’s

Mem. of P. & A. in Opp. to Def.’s Mot. for Summ. J., and in Supp. of Pl.’s Cross-Mot. for

Summ. J. [ECF No. 12-1] (“Pl.’s Opp.”).) For the reasons stated herein, defendant’s motion will

be denied and plaintiff’s motion will be denied without prejudice.

                                        BACKGROUND

I.     PLAINTIFF’S CONVICTION

       In March 1997, plaintiff was found guilty on numerous charges related to a drug

trafficking conspiracy, including operating a continuing criminal enterprise. See United States v.

Wright, 155 F.3d 564 (4th Cir. 1998) (per curiam). Sixty-three witnesses testified for the
government at trial, many of whom testified about their own criminal activities. (See Def.’s Mot.

at 1-3.) Defendant explains that “at least five individuals who testified against [plaintiff] did so

by agreement with the government.” 1 (Id. at 3.)

II.    PLAINTIFF’S FIRST FOIA REQUEST

       On May 30, 2013, plaintiff made a FOIA request to the United States Attorney’s Office

in Virginia for the following information:

       1. Names of all individuals granted Immunity in the case of United States v.
       Marty Lorenzo Wright . . . .
       2. Copies of Immunity letters issued in . . . United States v. Marty Lorenzo
       Wright.
       3. Names of Agents, Prosecutor, and/or Judge who issued and signed the
       Immunity Agreements in the case of United States v. Marty Lorenzo Wright. . . .

(Def.’s Mot, Ex. A [ECF No. 10-2].) The EOUSA, responding on behalf of the United States

Attorney’s Office, denied plaintiff’s request, stating:

       It is the policy of the Execute Office neither to confirm nor deny that records
       concerning living third parties exist. Further, any release to you of such records,
       if they do exist, would be in violation of the Privacy Act. 5 U.S.C. § 552a. The
       requested material would also be exempt from release pursuant to 5 U.S.C. §
       552(b)(6) and/or (b)(7)(C) which pertain to records whose disclosure would result
       in an unwarranted invasion of personal privacy.

(Def.’s Mot., Ex. B [ECF No. 10-2].) The Office of Information Policy denied plaintiff’s

subsequent appeal, explaining:

       To the extent that responsive records exist, without consent, proof of death,
       official acknowledgment of an investigation, or an overriding public interest,
       disclosure of law enforcement records concerning an individual could reasonably

1
  To support this assertion, defendant cites plaintiff’s brief appealing his conviction. See Brief
for Appellant, United States v. Wright, 155 F.3d 464 (4th Cir. 1998) (No. 97-4554), 1997 WL
33493154, at *24 (“The government failed to show that [plaintiff] was in a position of organizer
or manager with respect to the alleged drug distribution. The government relied on the testimony
of five indicted coconspirators. These individuals had agreed to testify about their involvement
with [plaintiff].”). Neither party explains whether the identities of all of these individuals are
known or whether there might have been additional individuals who received immunity
agreements from the government.

                                                   2
       be expected to constitute an unwarranted invasion of personal privacy. Because
       any records responsive to your request would be categorically exempt from
       disclosure, EOUSA properly asserted Exemption 7(C) and was not required to
       conduct a search for the requested records.

(Def.’s Mot., Ex. D [ECF No. 10-2] (citation omitted).)

III.   PLAINTIFF’S SECOND FOIA REQUEST

       On November 30, 2013, Jeremy Gordon, an attorney, submitted the following FOIA

request to the EOUSA on plaintiff’s behalf:

       I request that I be provided with copies of any and all documents, notes, and other
       records reflecting a grant of immunity or non prosecution to individuals who
       testified or cooperated in any fashion in United States v. Marty Lorenzo Wright.
       To the extent responsive records may be subject to redaction, I request all
       reasonably segregable portions of all responsive records.

(Def.’s Mot., Ex. E [ECF No. 10-2] (citation omitted).) Defendant explains that the “EOUSA

interpreted this request as a duplicate of the first request” and therefore “did not respond to

plaintiff’s second request.” (Def.’s Mot., Decl. of David Luczynski [ECF No. 10-1] (“Luczynski

Decl.”) ¶ 14.)

       On April 3, 2014, plaintiff filed suit, seeking to compel defendant to produce the records

described in his second FOIA request. (Compl. ¶ 11.) Both parties have now moved for

summary judgment.

                                            ANALYSIS

I.     STANDARD OF REVIEW

       Summary judgment is appropriate when the pleadings and evidence show 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). On “summary judgment the

inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable

                                                  3
to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986) (alteration in original) (internal quotation marks omitted); Judicial Watch, Inc.

v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013).

       “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); see also

Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). In FOIA

cases, “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B). A court may

grant summary judgment based solely on an agency’s affidavits “if the affidavits describe the

documents and the justifications for nondisclosure with reasonably specific detail, demonstrate

that the information withheld logically falls within the claimed exemption, and are not

controverted by either contrary evidence in the record nor by evidence of agency bad faith.”

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

II.    LEGAL FRAMEWORK

       “[FOIA] was enacted to facilitate public access to Government documents.” U.S. Dep’t

of State v. Ray, 502 U.S. 164, 173 (1991). The statute 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). “An agency must disclose agency records to any person under § 552(a), unless

they may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b).”

U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 150-51 (1989) (internal quotation marks

omitted).

       Defendant asserts that two exemptions are applicable to plaintiff’s request. (See Def.’s

Mot. at 7-9.) The first is Exemption 6, which protects “personnel and medical files and similar



                                                 4
files the disclosure of which would constitute a clearly unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(6). The second is Exemption 7(C), which protects “records or

information compiled for law enforcement purposes, but only to the extent that the production of

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

unwarranted invasion of personal privacy.” Id. § 552(b)(7)(C). In applying both Exemptions 6

and 7(C), 2 courts “balance the privacy interests that would be compromised by disclosure against

the public interest in release of the requested information.” Davis v. U.S. Dep’t of Justice, 968

F.2d 1276, 1281 (D.C. Cir. 1992).

III.   THE EOUSA’S CATEGORICAL DENIAL

       Defendant concedes that the “EOUSA has neither conducted a search for responsive

records, nor conducted a segregability review of any responsive records that may exist.” (Def.’s

Mot. at 14.) Defendant justifies this so-called “categorical denial” on the grounds that plaintiff’s

“request is for third party information,” for which the EOUSA “requires that the requester

provide either a written authorization from the third party . . ., proof that the subject of the

request is deceased, or a meaningful evidentiary showing that the public interest in disclosure

sufficiently outweighs the privacy interests of the third party.” (Luczynski Decl. ¶¶ 16-17 (citing

28 C.F.R. § 16.3(a)).) Defendant argues that “records . . . about individuals’ immunity and

immunity agreements are clearly records compiled for law enforcement purposes, the disclosure

of which would constitute both an unwarranted invasion of personal privacy and a clearly

unwarranted invasion of personal privacy under exemption 6 or 7(c).” 3 (Id. ¶ 26.)



2
  The D.C. Circuit has noted that “the privacy inquiries of Exemptions 6 and 7(C) are essentially
the same.” Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1125 (D.C. Cir. 2004).
3
 While the agency originally refused to confirm or deny the existence of the records plaintiff
sought – the so-called Glomar response – the agency now believes that “the Glomar response
                                                   5
       The Supreme Court has explained that “categorical decisions may be appropriate and

individual circumstances disregarded when a case fits into a genus in which the balance

characteristically tips in one direction.” U.S. Dep’t of Justice v. Reporters Comm. for Freedom

of the Press, 489 U.S. 749, 776 (1989). In Reporters Committee, plaintiff “sought disclosure of

any arrests, indictments, acquittals, convictions, and sentences” of four individuals with

organized-crime associations. Id. at 757. The Court held that such “rap sheet” information was

categorically protected by Exemption 7(C). See id. at 780 (“[W]e hold as a categorical matter

that a third party’s request for law enforcement records or information about a private citizen can

reasonably be expected to invade that citizen’s privacy . . . .”).

       The D.C. Circuit clarified the scope of the third-party categorical exemption in SafeCard

Services, Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991). The plaintiff in SafeCard sought

documents related to an SEC investigation, and, pursuant to Exemption 7(C), the agency

“deleted the names and addresses of third parties mentioned in witness interviews, of customers

listed in stock transaction records . . ., and of persons in correspondence with the SEC.” Id. at

1205. The Circuit affirmed these redactions, holding “categorically that, unless access to the

names and addresses of private individuals appearing in files within the ambit of Exemption 7(C)

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

illegal activity, such information is exempt from disclosure.” Id. at 1206. The D.C. Circuit

affirmed the SafeCard rule in Nation Magazine v. United States Customs Service, 71 F.3d 885

(D.C. Cir. 1995), noting that “to the extent any information contained in 7(C) investigatory files

would reveal the identities of individuals who are subjects, witnesses, or informants in law



does not apply” and is relying exclusively on a “third party categorical denial.” (Luczynski
Decl. ¶¶ 6, 14, 16.)

                                                  6
enforcement investigations, those portions of responsive records are categorically exempt from

disclosure.” Id. at 896; see also Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 666 (D.C. Cir.

2003) (“Assuming that the ‘private’ individuals mentioned in the records are living, their names

and identifying information are presumptively exempt from disclosure under the Safecard

rule.”). The Circuit, however, has cautioned that SafeCard does not “permit[] an agency to

exempt from disclosure all of the material in an investigatory record solely on the grounds that

the record includes some information which identifies a private citizen or provides that person’s

name and address.” Nation Magazine, 71 F.3d at 896; accord Citizens for Responsibility &

Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d 1082, 1094 (D.C. Cir. 2014).

       Following SafeCard, several courts in this Circuit have upheld categorical refusals to

search for records of specified third parties where such searches would reveal only protected

information. In Blackwell v. FBI, 646 F.3d 37 (D.C. Cir. 2011), plaintiff submitted several FOIA

requests “for, among other things, all documents related to key witnesses in his trial.” Id. at 39.

The FBI conducted a search using only plaintiff’s name and identified thousands of responsive

documents. Id. Plaintiff argued that the FBI’s search was inadequate “because the Bureau did

not search its database using the names of individuals he had specifically mentioned in his

request.” Id. at 42. The Circuit held that “the FBI was correct in declining to search for such

documents” because “a search for records ‘pertaining to’ specific individuals would have added

only information that [the Circuit had] concluded is protected by Exemption 7(C).” Id. (citation

omitted); see also Black v. U.S. Dep’t of Justice, No. 13-cv-1195, 2014 U.S. Dist. LEXIS

133039, at *1, *29-30 (D.D.C. Sept. 23, 2014) (affirming categorical denial to respond to a

request “seeking all criminal files . . . referencing Aida Prendushi and all tape recordings and

wiretaps which reference Ms. Prendushi”); Lewis v. U.S. Dep’t of Justice, 609 F. Supp. 2d 80,



                                                 7
82, 84 (D.D.C. 2009) (affirming categorical denial to search for “records pertaining to ‘any

investigation performed concerning Sarah Blair’s employment with Orchid Cellmark’” under

Exemption 7(C)), aff’d No. 09-5225, 2010 U.S. App. LEXIS 7367 (D.C. Cir. Apr. 7, 2010).

       Defendant urges the Court to follow Blackwell, arguing that “any information that

[plaintiff] requested would be applicable to third parties” only and would not “shed light on . . .

the operation and activities of the Executive Branch.” (Def.’s Mot. at 14 (quoting Luczynski

Decl. ¶¶ 23, 30).) Plaintiff responds that his request is distinguishable from the request in

Blackwell inasmuch as he is not asking for records related to any named individuals. (See Pl.’s

Opp. at 1.)

       Defendant’s categorical refusal to search for the records plaintiff requests is only

appropriate if, in balancing “the privacy interests that would be compromised by disclosure

against the public interest in release of the requested information,” Davis, 968 F.2d at 1281, “the

balance characteristically tips” toward nondisclosure. Reporters Comm., 489 U.S. at 776.

Turning first to the public interest side of the ledger, the Court is not persuaded by defendant’s

contention that the requested documents could not reveal information about the operations and

activities of the Executive Branch. “[M]atters of substantive law enforcement policy . . . are

properly the subject of public concern.” Id. at 766 n.18. In Citizens for Responsibility & Ethics

in Washington, the D.C. Circuit found a “weighty public interest” in “records [that] would likely

reveal much about the diligence of the FBI’s investigation and the DOJ’s exercise of its

prosecutorial discretion.” 746 F.3d at 1092-93; see also Showing Animals Respect & Kindness v.

U.S. Dep’t of Interior, 730 F. Supp. 2d 180, 195 (D.D.C. 2010) (“[T]he public has an interest in

finding out whether and under what circumstances certain individuals receive preferential

treatment from government investigators and prosecutors.”). In the present case, plaintiff has



                                                 8
requested “any and all documents, notes, and other records reflecting a grant of immunity or non

prosecution to individuals who testified or cooperated in any fashion in United States v. Marty

Lorenzo Wright.” (Def.’s Mot., Ex. E [ECF No. 10-2].) The Court disagrees with defendant that

this request is identical to plaintiff’s original request, which was confined to the immunity

agreements themselves. 4 (See Luczynski Decl. ¶ 14.) The request for “any and all documents,

notes, and other records reflecting a grant of immunity” could reach, for example, notes outlining

the rationale for offering a particular witness immunity. Such documents might shed light on

how the U.S. Attorney’s Office in Virginia exercises its prosecutorial discretion. As such, the

Court cannot categorically conclude that plaintiff’s request could not possibly yield any

information of public interest.

       With respect to the privacy interests implicated by plaintiff’s request, defendant has

failed to demonstrate that the requested material would necessarily reveal protected information.

The D.C. Circuit has made clear that the categorical SafeCard rule exempts from disclosure “any

information contained in 7(C) investigatory files [that] would reveal the identities of individuals

who are subjects, witnesses, or informants in law enforcement investigations.” Nation

Magazine, 71 F.3d at 896. If plaintiff were requesting information about a named individual, as

in Blackwell, defendant could potentially argue that every document produced would necessarily

reveal protected personal details, since the request itself would link the documents to the

individual’s identity. In the present case, however, plaintiff is not asking for documents related

to any particular person. Indeed, neither party has asserted that the identities of the people who

received immunity are public knowledge. A search might therefore uncover responsive



4
 Indeed, defendant acknowledges that plaintiff’s second request is “more broad” and
“encompass[es] even more information about immunity.” (Luczynski Decl. ¶ 15.)

                                                 9
documents that could be redacted to protect the identities of any named individuals. See id.

(holding that an agency may not “exempt from disclosure all of the material in an investigatory

record solely on the grounds that the record includes some information which identifies a private

citizen”); Marino v. Drug Enforcement Admin., 15 F. Supp. 3d 141, 157 (D.D.C. 2014) (“The

DEA puts forth no reason why redactions or selective withholding will not suffice to protect any

existing privacy interests.”). The search could also reveal documents that do not themselves

contain personal information but merely describe the decision-making process culminating in the

immunity agreements. See Bartko v. U.S. Dep’t of Justice, No. 13-cv-1135, 2014 U.S. Dist.

LEXIS 107109, at *22 (D.D.C. Aug. 5, 2014). In light of the breadth of the request and the

absence of any evidence about what the search would produce, the Court cannot conclude that all

responsive documents will so impinge on third parties’ privacy rights as to be exempt from

disclosure. See Stern v. FBI, 737 F.2d 84, 91 (D.C. Cir. 1984) (“Because the myriad of

considerations involved in the Exemption 7(C) balance defy rigid compartmentalization, per se

rules of nondisclosure based upon the type of document requested, the type of individual

involved, or the type of activity inquired into, are generally disfavored.”).

                                          CONCLUSION

       Since plaintiff has requested documents that could reveal information of public interest,

which could be redacted to protect third-party privacy interests, this is not a case where the

balance between privacy and public interest “characteristically tips in one direction.” Reporters

Comm., 489 U.S. at 776. The Court will therefore DENY defendant’s motion for summary

judgment [ECF No. 10] and DENY plaintiff’s cross-motion for summary judgment [ECF No.




                                                 10
12] without prejudice. 5 The government should conduct a search for documents responsive to

plaintiff’s November 30, 2013 FOIA request and produce all documents it is not withholding

pursuant to a FOIA exemption. Defendant should file a renewed motion for summary judgment

on or before May 30, 2015. Plaintiff has until June 20, 2015 to file his opposition, and defendant

has until June 29, 2015 to file its reply. An Order consistent with this Memorandum Opinion

will be issued on this day.

                                                     /s/ Ellen Segal Huvelle
                                                     ELLEN SEGAL HUVELLE
                                                     United States District Judge
Date: March 16, 2015




5
 The Court will deny without prejudice plaintiff’s cross-motion for summary judgment, because
he is not entitled to the relief he seeks in his complaint: namely, that defendant be compelled “to
produce the records” described in his FOIA request. (Compl. ¶ 11.)

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