                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 ALEXANDER OTIS MATTHEWS,

                Plaintiff,

        v.
                                                          Civil Action No. 15-569 (RDM)
 FEDERAL BUREAU OF
 INVESTIGATION,

                Defendant.


                             MEMORANDUM OPINION AND ORDER

       Plaintiff Alexander Otis Matthews, proceeding pro se, is currently serving a sentence for

bank fraud and wire fraud. In March 2013, Matthews submitted a Freedom of Information Act

(“FOIA”) request to the Federal Bureau of Investigation (“FBI”), seeking all records about

himself. Dkt. 53-5 at 2–3 (Hardy Decl. ¶ 5). To date, the FBI has processed 671 pages of

responsive documents but has declined to process any “investigative files resulting in

[Matthews’s] wire fraud and bank fraud prosecutions . . . and the related motion to vacate [his]

sentence” because Matthews “waived his rights to request [those] investigative documents under

the FOIA and Privacy Acts” in his plea agreement. Dkt. 53-6 at 3, 10–11 (Argall Decl. ¶¶ 4, 20).

       The matter is now before the Court on the FBI’s motion for summary judgment. Dkt. 53.

Matthews opposes the motion on one ground: He argues that he is entitled to records related to

his prosecution because the FOIA waiver in his plea agreement is unenforceable as a matter of

public policy. Dkt. 59 at 3. Matthews does not otherwise challenge any of the FBI’s other

withholdings. Because the Court concludes that Matthews’s FOIA waiver is unenforceable

under the D.C. Circuit’s decision in Price v. U.S. Dep’t of Justice Attorney Office, 865 F.3d 676
(D.C. Cir. 2017), the Court will DENY the FBI’s motion for summary judgment with respect to

the FBI’s waiver defense. Moreover, because the Court requires additional information to assess

portions of the FBI’s withholdings pursuant to FOIA Exemptions 6 and 7(D), the Court will also

DENY the FBI’s motion with respect to those withholdings. In all other respects, however, the

Court will GRANT the motion.

                                       I. BACKGROUND

A.     Factual Background

       1.      Matthews’s Prosecution

       In 2011, the United States charged Matthews in two indictments related to mortgage and

investment fraud 1: a one-count indictment filed in the Eastern District of Virginia for wire fraud

and a one-count indictment filed in the District of Maryland for bank fraud. Dkt. 53-2 at 1 (Def.

Statement of Undisputed Material Facts (“SUMF”) ¶ 4); Dkt. 53-4 at 2 (Faulconer Decl. ¶¶ 2b–

2c). Matthews agreed to transfer the Maryland indictment to the Eastern District of Virginia,

where the two cases were litigated in tandem. Dkt. 53-4 at 2 (Faulconer Decl. ¶¶ 2e–2f). On

July 15, 2011, Matthews pled guilty to both indictments. See Dkt. 24-1 at 57–58 (Plea

Agreement ¶¶ 1a–1b). He admitted to three instances of mortgage fraud and one instance of

investment fraud. Dkt. 53-2 at 1 (Def. SUMF ¶ 5); Dkt. 53-4 at 2 (Faulconer Decl. ¶ 2f).

       Before Matthews pled guilty, the United States and Matthews’s defense counsel in the

Eastern District of Virginia cases entered into an “agreed” discovery order, which required the

government to disclose information pursuant to Federal Rule of Criminal Procedure 16,


1
  This was not Matthews’s first mortgage fraud prosecution. In 2001, he pled guilty in the U.S.
District Court for the District of Columbia to one count of making a false statement, in violation
of 18 U.S.C. § 1001, in connection with a mortgage fraud scheme. Dkt. 53-4 at 1–2 (Faulconer
Decl. ¶ 2a). He was sentenced to four years of probation and ordered to pay $277,417 in
restitution. Id.

                                                 2
exculpatory material required by Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs,

427 U.S. 97 (1976), and witness material required by the Jencks Act and Giglio v. United States,

405 U.S. 150 (1972). Dkt. 53-2 at 2 (Def. SUMF ¶ 7); Dkt. 53-4 at 3 (Faulconer Decl. ¶ 3).

Pursuant to that order, the United States produced “over 9,000 pages of documents on at least

eight compact discs to [Matthews] and his counsel over approximately a three-month period of

time.” Dkt. 53-2 at 2 (Def. SUMF ¶ 8); see also Dkt. 53-4 at 3 (Faulconer Decl. ¶ 3). Those

documents included “mortgage loans files, bank records, bankruptcy-related documents, reports

and other documents related to interviews conducted by the [FBI], and materials related to

[Matthews’s] prior conviction in the District of Columbia.” Dkt. 53-4 at 4 (Faulconer Decl. ¶ 3).

After viewing the discovery, Matthews entered into a guilty plea and attested, as part of the plea

agreement, that his attorney had rendered “effective service” in representing him. See Dkt. 24-1

at 58 (Plea Agreement ¶ 3).

       The plea agreement also required Matthews to waive his right to file a FOIA request for

documents relating to his prosecution. See id. at 62 (Plea Agreement ¶ 6). Specifically, the

FOIA wavier states, in full:

       The defendant also hereby waives all rights, whether asserted directly or by a
       representative, to request or receive from any department or agency of the
       United States any records pertaining to the investigation or prosecution of this
       case, including without limitation any records that may be sought under the
       Freedom of Information Act, Title 5, United States Code, Section 552; or the
       Privacy Act, Title 5, United States Code, Section 552a.

Id. In exchange for his various concessions and waivers, the United States agreed not to further

prosecute Matthews for the conduct in either the Maryland or Eastern of District of Virginia

indictments or for conduct set forth in the statement of facts. Dkt. 53-4 at 3 (Faulconer Decl.

¶ 2f). In October 2011, Matthews was sentenced to a 120-month term of incarceration and

ordered to pay five million dollars in restitution. Id. (Faulconer Decl. ¶ 2g).

                                                  3
       Matthews later filed a petition for collateral relief pursuant to 28 U.S.C. § 2255, alleging

that his counsel had failed to “disclose the early plea offer” made by the Assistant U.S. Attorney

(“AUSA”) in the Maryland prosecution. Dkt. 59 at 1. In its brief in opposition, the U.S.

Attorney’s Office wrote:

       Here, the petitioner’s claim is fatally flawed with respect to prejudice, and it is
       thus unnecessary to address whether [his counsel] rendered effective
       assistance. More specifically, the petitioner has not even argued—let alone
       established—that the United States extended a particular formal plea offer to
       him. As a result, the petitioner has failed to satisfy his burden of demonstrating
       that he, the United States, and this Court would have accepted such a
       hypothetical plea offer, and he is thus unable to satisfy the second prong of the
       Strickland test for his claims.

Dkt. 59-2 at 1. The petition was denied, and Matthews is currently serving the remainder of his

sentence at a halfway house in D.C. See Dkt. 57.

       2.      Matthews’s FOIA Request

       On March 1, 2013, Matthews filed a FOIA request with the FBI, seeking records about

himself. Dkt. 53-5 at 2–3 (Hardy Decl. ¶¶ 5–6) (docketing Matthews’s request as No. 1210788-

000). He alleges that his request was motivated by the fact that AUSA Ryan Faulconer, from the

Eastern District of Virginia, had falsely represented during his § 2255 proceedings that no early

plea offer was ever presented to his counsel. Dkt. 59 at 1. In response to Plaintiff’s request, the

FBI processed a total of 671 pages, releasing 35 pages in full, 272 pages in part, and withholding

364 pages in full, pursuant to Privacy Act Exemption (j)(2) and FOIA Exemptions 3, 5, 6, 7(C),

7(D), 7(E). Dkt. 53-6 at 3–4 (Argall Decl. ¶ 4). 2



2
  The FBI made three releases to Matthews: one before he filed suit and two after. On March
26, 2014, the FBI advised Matthews that it had processed 651 pages of responsive documents,
and released 265 pages in full or in part. Dkt. 53-5 at 4 (Hardy Decl. ¶ 12). Next, by letter dated
October 5, 2015, the FBI advised Matthews that it had reviewed the “197 file” records that he
had sought in an amendment to his original FOIA request and was releasing 15 pages in full or in


                                                  4
B.     Procedural Background

       In April 2015, Matthews filed this lawsuit, alleging that the FBI refused to process some

responsive documents and improperly withheld others. Dkt. 1 at 1 (Compl.). The FBI initially

moved to dismiss the case on the ground that Matthews had neglected to pay his FOIA

processing fees or to seek a fee waiver. Dkt. 12 at 1. The Court denied the motion as moot, see

Minute Order (Oct. 8, 2015), after Matthews paid the processing fee in September 2015, see Dkt.

17. The Court then set a schedule for the production of non-exempt records and for dispositive

motions briefing. Dkt. 21. In January 2016, the FBI moved for summary judgment. Dkt. 24. In

its reply brief, the FBI argued for the first time that Matthews was prohibited from proceeding in

forma pauperis pursuant to 28 U.S.C. § 1915(g). Dkt. 28 at 2. The Court, accordingly,

dismissed Matthews’s action without prejudice. Dkt. 31. In light of Matthews’s motion for

reconsideration, Dkt. 32, however, the Court concluded that Matthews was not barred from

bringing his claim altogether, but that he was required to pay the filing fee in order to proceed.

Dkt. 35 at 1. The Court received Matthews’s filing fee in February 2018, see Receipt of Filing

Fee (Feb. 21, 2018), and, subsequently, the FBI renewed its motion for summary judgment, Dkt.

53. That motion is now fully briefed.

                                    II. LEGAL STANDARD

       The Freedom of Information Act mandates that an agency disclose records on request,

unless they fall within one of nine exemptions. “These exemptions are explicitly made exclusive

and must be narrowly construed.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011) (citation



part. Dkt. 53-6 at 5 (Argall Decl. ¶ 8). Finally, by letter dated October 30, 2015, the FBI made a
supplemental release of all responsive records—that is, “a complete collection of records that
had been previously released to Plaintiff on March 26, 2014 and on October 5, 2015,” along with
a Vaughn Index. Id. (Argall Decl. ¶ 9).

                                                 5
and quotation marks omitted). “FOIA cases are typically resolved on motions for summary

judgment under Federal Rule of Civil Procedure 56.” Shapiro v. U.S. Dep’t of Justice, 153 F.

Supp. 3d 253, 268 (D.D.C. 2016). To prevail on a summary judgment motion, the moving party

must demonstrate that there are no genuine issues of material fact and that he or she is entitled to

judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). “In a FOIA action, the Court may award summary judgment to an agency solely on

the basis of information provided in affidavits or declarations that describe ‘. . . the justifications

for nondisclosure [of records] with reasonably specific detail . . . and are not controverted by

either contrary evidence in the record nor by evidence of agency bad faith.’” Thomas v. FCC,

534 F. Supp. 2d 144, 145 (D.D.C. 2008) (alteration in original) (quoting Military Audit Project v.

Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). The Court reviews the agency’s determinations de

novo, and the agency bears the burden of sustaining its actions. 5 U.S.C. § 552(a)(4)(B).

                                          III. ANALYSIS

        Aside from contesting the enforceability of the FOIA wavier in his plea agreement,

Matthews does not otherwise challenge the adequacy of the FBI’s search or its invocation of

FOIA exemptions. The relevant portion of his four-page brief in opposition states, in full:

        The plaintiff very respectfully argues that the legal issues before the [C]ourt in
        this [FOIA] proceeding are compelling enough and are of serious enough a
        nature for the public that the [C]ourt has a duty to deny the defendant’s motion
        for summary judgment and allow this case to go forward so that the records of
        the early draft plea agreement can be obtained as well as any other records that
        the plaintiff has requested in this proceeding.

Dkt. 59 at 3. Despite Matthews’s non-opposition to the FBI’s claimed exemptions, the Court

will “verify the validity of each.” Summers v. U.S. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C.

Cir. 1998); see also Fed. Open Market Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340,

351–52 (1979) (the agency invoking a FOIA exemption bears the burden of “establish[ing] that

                                                   6
the requested information is exempt”). The Court will, accordingly, briefly address the adequacy

of the FBI’s search, each of the FBI’s claimed exemptions, and whether the agency has released

all segregable, non-exempt records, before turning to the validity of Matthews’s FOIA waiver.

A.     Search and Withholdings

       1.      Adequacy of Search

       The FBI argues that it “conducted an adequate search for records in response to

[Matthews’s] FOIA request.” Dkt. 53-1 at 9. 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)). The adequacy of the

FBI’s search is “judged by a standard of reasonableness and depends . . . upon the facts of each

case.” Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). Importantly, “the

issue to be resolved is not whether there might exist any other documents possibly responsive” to

Matthews’s request, but “whether the search for those documents was adequate.” Id. (emphasis

in original). Absent contrary evidence, the FBI’s affidavits or declarations will “suffice to

demonstrate compliance with . . . FOIA,” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982),

unless the record “leaves substantial doubt as to the sufficiency of the search,” Truitt, 897 F.2d at

542.

       To demonstrate the adequacy of its search, the FBI offers the declaration of Dennis

Argall, Assistant Section Chief of the Record/Information Dissemination Section (“RIDS”) of

the FBI. Dkt. 53-6 at 2 (Argall Decl. ¶ 1). Argall explains that, “[i]n response to [Matthews’s]

request, RIDS conducted a [Central Records System (“CRS”)] index search for responsive

records.” Id. at 9 (Argall Decl. ¶ 18). CRS is “an extensive system of records consisting of



                                                 7
applicant, investigative, intelligence, personnel, administrative, and general files compiled and

maintained by the FBI . . . .” Id. at 5 (Argall Decl. ¶ 10). According to Argall, “a [Universal

Index (“UNI”)] search in [the FBI’s Automated Case Support (“ACS”) system]”—as was

conducted here —“is capable of locating” all CRS records “in both paper and electronic format.”

Id. at 8 (Argall Decl. ¶ 15). Argall described the FBI’s search as follows:

       The ACS search was a three-way phonetic search of Matthews’[s] name. This
       means that first, the computer automatically broke his name down and searched
       the index for three different breakdowns of the name entered: “Matthews,
       Alexander Otis;” “Matthews, Alexander O.;” and “Matthews, Alexander.”
       Then, the computer breaks names down based on their phonetic characteristics.
       The computer will return results based on whether they phonetically match a
       certain percentage of the first and last name searched. The default phonetic
       match setting for first and last names is 80%. Thus, in this case, the computer
       returned results that were an 80% or greater phonetic match to the three-way
       breakdowns of the names that were searched.

Id. at 9–10 (Argall Decl. ¶ 18). The following responsive files were located: 29B-WF-211936

and 197C-HQ-A2660193. Id. The search also located “several other files” that fell within the

scope of Matthews’s FOIA waiver in his plea agreement. Id.

       Matthews, for his part, has offered no evidence to challenge the adequacy of the FBI’s

search, nor does he contest the search terms the FBI used or the scope of its search. Given that

Matthews requested records about himself, the Court concludes that the FBI’s search of its CRS,

using three variations of Matthews’s name, is reasonably calibrated to locate all responsive

records. The Court will, accordingly, grant summary judgment in favor of the FBI on the

adequacy of its search.

       2.      Withholdings

       Next, the Court turns to the FBI’s asserted rationales for invoking Exemptions 3, 5, 6,

7(C), 7(D), and 7(E) to withhold various responsive documents in whole or in part. The FBI has

provided a Vaughn Index summarizing its withholdings. Dkt. 24-2. It also relies on Argall’s

                                                 8
declaration. Matthews, for his part, does not contest the applicability of any of these exemptions,

except to the extent that he argues the FBI is “obligated” to release all documents he is

requesting. See Dkt. 59 at 3.

               a.      Exemption 3

       Argall attests that the FBI invoked Exemption 3 of FOIA to withhold documents

containing “information which explicitly discloses matters occurring before a Federal Grand

Jury.” Dkt. 53-6 at 16 (Argall Decl. ¶ 29). Exemption 3 “excludes from compelled disclosure

matters that are ‘specifically exempted from disclosure by statute.’” Judicial Watch, Inc. v. U.S.

Dep’t of Def., 245 F. Supp. 3d 19, 34 (D.D.C. 2017) (quoting 5 U.S.C. § 552(b)(3)). The

exemption applies only when the statute at issue “requires that the matters be withheld from the

public in such a manner as to leave no discretion on the issue,” or “establishes particular criteria

for withholding or refers to particular types of matters to be withheld.” Morley v. CIA, 508 F.3d

1108, 1126 (D.C. Cir. 2007).

       The FBI relied on Exemption 3 to withhold the “names and/or identifying information of

third parties who were either subpoenaed . . . or actually provided testimony to the Federal Grand

Jury; the company names and/or employees served with Federal Grand Jury subpoenas;

information identifying specific records subpoenaed by the Federal Grand Jury; and other

information on the internal workings of the Federal Grand Jury.” Dkt. 53-6 at 16 (Argall Decl.

¶ 29). The FBI contends that this information is covered by Exemption 3 because Federal Rule

of Criminal Procedure 6(e) expressly bars disclosure of “matters occurring before the grand

jury,” subject to certain exceptions, none of which are applicable here. See Dkt. 53-1 at 11–12

(citing Fed. R. Crim. P. 6(e)(3)). It is well-established that Rule 6(e) is a qualifying statute for

purposes of Exemption 3. See, e.g., Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1113 (D.C.



                                                  9
Cir. 2007); Fund for Const. Gov’t v. Nat’l Archives & Records Serv., 656 F.2d 856, 867 (D.C.

Cir. 1981). Here, the identities of those served with Federal Grand Jury subpoenas, the records

subpoenaed, and “other information on the internal workings of the Federal Grand Jury,” Dkt.

53-6 at 16 (Argall Decl. ¶ 29), clearly disclose “matters occurring before the grand jury,” Fed. R.

Crim. P. 6(e). Accordingly, the Court concludes that the FBI properly invoked Exemption 3.

                  b.   Exemption 5

        The FBI also invoked Exemption 5 to withhold documents that it claims are subject to

various civil discovery privileges. Dkt. 53-6 at 17 (Argall Decl. ¶¶ 30–31). Exemption 5 covers

“inter-agency or intra-agency memorandums 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). Accordingly,

the exemption extends to any document covered by the agency’s civil discovery privileges, such

as attorney-client privilege, attorney work-product privilege, and deliberative process privilege.

See FTC v. Grolier, Inc., 462 U.S. 19, 26 (1983); Coastal States Gas Corp. v. Dep’t of Energy,

617 F.2d 854, 862 (D.C. Cir. 1980).

        The FBI claims that two documents are protected by the deliberative process privilege:

(1) a “draft application” prepared by the U.S. Attorney’s Office “for an ex parte order to disclose

information pertaining to the investigation” of Matthews’s mortgage fraud, and (2) “a draft plea

agreement prepared by the United States Attorney’s Office,” which was “supplied to the FBI for

deliberation and input.” Dkt. 53-6 at 19–20 (Argall Decl. ¶¶ 35–36). The deliberative process

privilege only applies to documents that are predicisional (that is, generated before the adoption

of an agency policy or action) and deliberative (that is, reflecting the give-and-take of the

consultative process). Coastal States Gas Corp., 617 F.2d at 866. Both requirements are

satisfied here.



                                                 10
       With respect to the first document—the draft ex parte application—Argall attests that the

document is “clearly pre[]decisional” because it “shows evidence of being a draft—it has

handwritten changes, strike-throughs, and notations, is not signed, and is not marked as ‘filed’ or

‘received.’” Dkt. 53-6 at 19 (Argall Decl. ¶ 35). Moreover, Argall concludes that the draft ex

parte application is “deliberative” because it “[1] expresses opinion on a legal matter, namely the

formulating and potential filing of said application, [2] reflects the consultative process of the

same, and [3] bore on the exercise of the agencies’ judgment on how or whether to file for the

said application.” Id. Argall came to the same conclusions with respect to the draft plea

agreement. He reasoned that the document was “clearly predecisional” because it was unsigned,

labeled “DRAFT,” and “ha[d] handwritten changes and notations.” Id. at 20 (Argall Decl. ¶ 36).

Argall further attests that the document is “deliberative” because it “[1] expresses opinion on a

legal matter”—“namely[,] which facts are provable, the degree to which they are legally

provable, and the overall strength of the government’s case against this potential defendant,” and

“[2] reflects the consultative process between the FBI and the Office of the United States

Attorney.” Id.

        In light of the above, the FBI reasonably concluded that the two documents “were

prepared in the context of agency employees’ and inter-agency deliberations;” that “they consist

of preliminary opinions, evaluations and comments of FBI staff and U.S. Attorney staff;” and

that the “release of these exempted materials would chill the full and frank discussion between

agency personnel and/or other agency personnel regarding agency decisions.” Id. (Argall Decl.

¶ 37). The Court, accordingly, holds that the FBI lawfully withheld the draft ex parte application

and draft plea agreement pursuant to the deliberative process privilege.




                                                 11
       The FBI also withheld three documents on the ground that they were attorney work

product: the aforementioned draft ex parte application and “two other pages . . . [that] describe

the FBI’s actions after receiving [Matthews’s] administrative tort claim.” Id. at 21 (Argall Decl.

¶¶ 39–40). Because the Court has already concluded that the draft ex parte application was

properly withheld pursuant to the deliberative process privilege, it will only address the second

group of documents. According to Argall, “both [of these] documents are administrative pages

showing the FBI attorneys’ behind-the-scenes work and analytical process, in reasonable

anticipation of litigation over [Matthews’s] tort claims.” Id. That is sufficient. See Judicial

Watch, Inc. v. U.S. Dep’t of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005) (“[A]ny part of [a

document] prepared in anticipation of litigation . . . is protected by the work product doctrine and

falls under exemption 5.” (second alteration in original) (citation omitted)).

       Finally, the FBI withheld an “inter-agency letter from DOJ attorneys to FBI attorneys”

based on attorney-client privilege. Dkt. 53-6 at 22 (Argall Decl. ¶ 42). That privilege protects

“confidential communications from clients to their attorneys made for the purpose of securing

legal advice or services;” “[i]n the governmental context, the ‘client’ may be the agency and the

attorney may be an agency lawyer.” Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997);

see also Hunton & Williams LLP v. EPA, 346 F. Supp. 3d 61, 80 (D.D.C. 2018) (quoting same).

Here, Argall describes the letter as follows:

       In the letter, the DOJ attorneys provide legal advice to the FBI attorneys
       regarding the [FTCA] claim [Matthews] filed and the actions needed, and the
       DOJ attorneys also request legal advice from the FBI regarding the factual
       background, the application of law, and the FBI’s opinion on the legal
       questions. To describe the communication in greater detail would risk
       disclosing the very information that is sought to be protected.

Dkt. 53-6 at 22 (Argall Decl. ¶ 42). Regardless which agency is viewed as counsel and which is

viewed as the client, Argall testifies that the letter “is a confidential communication . . . seeking

                                                  12
legal advice and providing legal analysis.” Id. That is sufficient to demonstrate that the FBI

properly invoked attorney-client privilege.

               c.     Exemptions 6 & 7(C)

       The FBI also explains that it withheld records pursuant to FOIA Exemptions 6 and 7(C).

Exemption 6 shields “personnel and medical files and similar files the disclosure of which would

constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). “[T]he

mere fact that an agency file or record contains personal, identifying information,” however, “is

not enough to invoke Exemption 6;” the information must be “of such a nature that its disclosure

would constitute a clearly unwarranted privacy invasion.” Judicial Watch, Inc. v. U.S. Dep’t of

State, 282 F. Supp. 3d 36, 49–50 (D.D.C. 2017) (quoting Nat’l Ass’n of Home Builders v.

Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)). The Court must first determine whether “disclosure

would compromise a substantial, as opposed to a de minimis, privacy interest.” Nat’l Ass’n of

Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989), before “balanc[ing] the

privacy interest in non-disclosure against the public interest” in disclosure. Consumers’

Checkbook Ctr. for the Study of Servs. v. U.S. Dep’t of Health & Human Servs., 554 F.3d 1046,

1050 (D.C. Cir. 2009).

       Exemption 7(C) protects similar interests to Exemption 6 but applies to a narrower

category of records—those “compiled for law enforcement purposes. See Tracy v. U.S. Dep’t of

Justice, 191 F. Supp. 3d 83, 95 (D.D.C. 2016) (quoting 5 U.S.C. § 552(b)(7)(C)). The two

exemptions, moreover, differ in other respects. Notably, while Exemption 6 is available only if

the disclosure “would constitute a clearly unwarranted invasion of personal privacy,” 5 U.S.C.

§ 552(b)(6) (emphasis added), “[t]he adverb ‘clearly’ . . . is not used in Exemption 7(C),” Nat’l

Archives & Records Admin. v. Favish, 541 U.S. 157, 165–66 (2004). Similarly, while



                                                13
“Exemption 6 refers to disclosures that ‘would constitute’ an invasion of privacy, Exemption

7(C) encompasses any disclosure that ‘could reasonably be expected to constitute’ such an

invasion.” Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756

(1989) (emphasis added).

       Relying on these two exemptions, the FBI withheld “the names and identifying

information” of six categories of individuals: (1) “FBI Special Agents . . . and support personnel

who were responsible for conducting, supervising, and/or maintaining the investigative activities

reflected in the documents responsive to Plaintiff’s FOIA request,” Dkt. 53-6 at 25 (Argall Decl.

¶ 48); (2) “personnel from non-FBI federal government agencies who provided information or

otherwise assisted the FBI in its investigation of [Matthews] or others,” such as AUSAs and

employees of the Department of Housing and Urban Development., id. at 26–27 (Argall Decl.

¶ 50); (3) “individuals who were interviewed and/or provided information to the FBI during the

course of its investigation,” id. at 27 (Argall Decl. ¶ 51); (4) “third parties who were of

investigative interest to the FBI,” id. at 29 (Argall Decl. ¶ 53); (5) “third parties who were merely

mentioned in the criminal investigative files containing information responsive to [Matthews’s]

request,” id. at 30 (Argall Decl. ¶ 54); and (6) “person(s) who provided ‘victim impact’ or

‘victim loss’ information at the request of the court,” id. at 31 (Argall Decl. ¶ 55).

Based on the information provided in Argall’s declaration, the Court concludes that the FBI

properly withheld the names and identifying information of the six categories of individuals

mentioned in Matthews’s main investigative file. The Court needs further information, however,

before it can grant summary judgment as to the FBI’s withholdings in Matthews’s 197 file.

       As a threshold matter, the Court agrees that “[Matthews’s] investigative main file” was

compiled for a specific law enforcement purpose: “the FBI’s criminal investigation” of



                                                 14
Matthews’s 2001 and 2011 prosecutions for mortgage fraud. Dkt. 53-6 at 23 (Argall Decl.

¶¶ 43–44 & n.19). Accordingly, Exemption 7(C) applies to those records. The D.C. Circuit has

long adopted “a categorical rule permitting an agency to withhold information identifying private

citizens mentioned in law enforcement records, unless disclosure is ‘necessary in order to

confirm or refute compelling evidence that the agency is engaged in illegal activity.’” Schrecker

v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (quoting SafeCard Servs., Inc. v.

SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991)). “This protection has generally been afforded to the

names of agency employees, as well, for similar if not identical reasons.” Tracy, 191 F. Supp. 3d

at 95 (citations omitted); see also Lesar v. U.S. Dep’t of Justice, 636 F.2d 472, 488 (D.C. Cir.

1980) (concluding that Exemption 7(C) protects the names of FBI agents because the agents

could face “public exposure or possible harassment”). Because Matthew makes no allegation

that disclosure of the private individuals’ information is necessary, and because Argall attests

that the FBI personnel and other agency staff could face retaliation and adverse publicity, see

Dkt. 53-6 at 25, 26–27 (Argall Decl. ¶¶ 48, 50), the Court concludes that the agency properly

invoked Exemption 7(C) to withhold the names and identifying information of all individuals

mentioned in Argall’s declaration to the extent those documents were found in Matthews’s main

investigative file.

        The responsive records, however, also include Matthews’s “197 file,” which is not an

“investigative file,” and was, in fact, “created as a result of [Matthews’s claim against the FBI]

under the Federal Tort Claims Act.” Dkt. 53-6 at 23 (Argall Decl. ¶ 44 & n.19). The FBI argues

that the 197 file still comprises law enforcement records for purposes of Exemption 7 because “it

was compiled by a law enforcement agency in preparation of defending its law enforcement

actions, and it contains discussion of law enforcement actions.” Id. The Court is unpersuaded.



                                                 15
The D.C. Circuit has held that “records kept by a law enforcement agency must meet two criteria

in order to qualify as law enforcement records”:

       First, the agency’s investigatory activities that give rise to the documents
       sought must be related to the enforcement of federal laws or to the maintenance
       of national security. An agency does not satisfy this requirement when merely
       engaging in a general monitoring of private individuals’ activities; rather, the
       agency must demonstrate a connection between its investigation and the
       existence of a possible security risk or violation of federal law.

       Second, the nexus between the investigation and one of the agency’s law
       enforcement duties must be based on information sufficient to support at least
       a colorable claim of its rationality.

Doe v. FBI, 936 F.2d 1346, 1353 (D.C. Cir. 1991) (internal quotation marks and citations

omitted). By Argall’s own admission, the 197 file does not contain “investigative files;”

accordingly Exemption 6 applies to these records.

       The FBI, accordingly, bears the burden of showing that the personal information in the

197 file was properly withheld under Exemption 6. To do so, it must establish that the

information is “of such a nature that its disclosure would constitute a clearly unwarranted

privacy invasion.” Judicial Watch, Inc., 282 F. Supp. 3d at 49–50 (emphasis added) (internal

quotations and citations omitted). Although the Argall declaration spells out the harms each

category of individuals could suffer if their identities were disclosed, 3 it does not offer any

details about which categories of individuals appeared in the 197 file, or the types of records



3
  See Dkt. 53-6 at 25 (Argall Decl. ¶ 48) (FBI personnel could face “hostility” and retaliation);
id. at 26–27 (Argall Decl. ¶ 50) (government personnel could face “adverse” publicity); id. at
27–28 (Argall Decl. ¶ 51) (third-party individuals who provided information to the FBI could be
“harassed, intimidated, or threatened”); id. at 29 (Argall Decl. ¶ 53) (third parties of investigative
interest could face “harassment or embarrassment”); id. at 30 (Argall Decl. ¶ 54) (third parties
merely mentioned in documents would be subject to “possible harassment or criticism” based on
their “being connected to a criminal investigation”); id. at 31 (Argall Decl. ¶ 55) (the two
individuals who provided “victim impact” testimony could be subject to “reprisal, harassment, or
threats”).

                                                  16
from which the names and identifying information were redacted. Absent this basic information,

the Court cannot ascertain whether the release of these names and identifying information would

compromise a “substantial” privacy interest. Nat’l Ass’n of Retired Fed. Emps., 879 F.2d at 874.

The Court will, accordingly, deny summary judgment as to the FBI’s withholdings based on

Exemption 6 in the 197 file, but will provide the agency with an opportunity to make a more

particularized showing.

               d.      Exemption 7(D)

       Next, the FBI invoked Exemption 7(D), which permits the withholding of documents

“compiled by criminal law enforcement authorities in the course of criminal investigations” that

“could reasonably be expected to disclose the identity of, as well as information provided by, a

confidential source.” Cooper v. Dep’t of Justice, 169 F. Supp. 3d 20, 39 (D.D.C. 2016) (internal

quotation marks and citations omitted). Because Exemption 7(D) applies not only to the identity

of the informant, but also to the “information furnished,” it sweeps more broadly than Exemption

7(C). See Lamb v. Millennium Challenge Corp., 334 F. Supp. 3d 204, 217 (D.D.C. 2018).

Whether the FBI can claim Exemption 7(D) “depends upon whether the particular source who

furnished the information at issue was granted confidentiality, either expressly or by

implication.” Cooper, 169 F. Supp. 3d at 39 (citing Mays v. Drug Enf’t Admin., 234 F.3d 1324,

1328 (D.C. Cir. 2000)). Not every source who “provides information to the FBI in the course of

a criminal investigation” is a “confidential source;” the FBI may only claim this exemption if it

expressly granted the informant confidentiality or if it can adequately “point to more narrowly

defined circumstances that will support the inference [of an implied assurance].” Mays, 234 F.3d

at 1329 (internal quotations and citation omitted). “[W]hen circumstances such as the nature of

the crime investigated and [the informant’s] relation to it support an inference of confidentiality,



                                                 17
the [FBI] is entitled to a presumption [of implied confidentiality].” Id. (second alteration in

original). More specifically, courts in this Circuit look to factors such as:

       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.

Roth v. Dep’t of Justice, 642 F.3d 1161, 1184 (D.C. Cir. 2011) (internal quotations and citations

omitted).

       The FBI identifies two categories of documents that it withheld containing “names,

identifying information about, and information provided by third parties” under implied

assurances of confidentiality. Dkt. 53-6 at 33 (Argall Decl. ¶ 59). First, the FBI withheld

documents concerning “information about” and information “provided by” an individual who

“was in a position to have ready access to, and knowledge about, targets and others involved in

fraudulent activities.” Id. at 33–34 (Argall Decl. ¶ 59(a)). This individual “agreed to provide an

informal proffer of some interviews he/she had conducted” and “provided specific detailed

information . . . concerning the activities of certain subjects regarding the FBI’s investigation of

fraudulent activities.” Id. Argall attests that disclosure of this source’s identity “could subject

[him/her], as well as his/her family, to embarrassment, humiliation, and/or physical or mental

harm.” Id. at 34 (Argall Decl. ¶ 59(a)). Second, the FBI withheld documents containing the

identifying information about “seven other individuals who provided . . . non-public information

to the FBI regarding the criminal activities in the responsive records” who were also “in

positions to have unique access to and/or knowledge about the targets of the investigation.” Id.

(Argall Decl. ¶ 59(b)). “[I]n some instances, [this] information was provided pursuant to a

Federal Grand Jury subpoena.” Id. Argall attests that these individuals also operated under an



                                                 18
implied understanding of confidentiality “[d]ue to the singular nature of the information and the

insights provided, and the particular relationships with the targets.” 4 Id. His declaration

explains that, in general, “third parties cooperate[] with the FBI only with [an] expectation of

confidentiality” because they “do so at a great risk of retaliation” and have, in fact, faced such

retaliation “when their assistance to the FBI has been publicly disclosed.” Id. at 35 (Argall Decl.

¶ 60).

         Applying the factors from Roth, 642 F.3d at 1184, the Court concludes that Argall’s

declaration “support[s] the inference of confidentiality,” Cooper, 169 F. Supp. 3d at 39, with

respect to the informant who agreed to provide an informal proffer. The crimes at issue included

bank fraud and wire fraud (based on Matthews’s mortgage and investment fraud schemes),

which resulted in his sentence of 120-months’ incarceration and five-million dollars in

restitution. See Dkt. 53-2 at 1 (Def. SUMF ¶¶ 4–5); Dkt. 53-4 at 3 (Faulconer Decl. ¶ 2g). “The

seriousness of the offense and the resulting punishment weigh in favor of finding cooperator

confidentiality.” Marck v. Dep’t of Health and Human Servs., 314 F. Supp. 3d 314, 328 (D.D.C.

2018) (analogous case involving “conspiracy to defraud the United States; bank fraud, fraud by

wire, radio, or television; and securities violations” resulting in a sentence of 180 months’

incarceration). Although the source did not have an on-going relationship with the FBI and was

not, as far as the Court is aware, paid by the FBI, Argall attests that he or she had a close

relationship with the target(s). In fact, Argall attests that the source had “agreed to provide an

informal proffer of some interviews he/she had conducted.” Dkt. 53-6 at 34 (Argall Decl.




4
  Although this statement is cursory on its face, Argall explains that brevity is necessary because
“describing the individuals or information in further detail would risk revealing the very
information the FBI endeavors to protect.” Dkt. 53-6 at 34 (Argall Decl. ¶ 59(b)).

                                                 19
¶ 59(a)). In light of these facts, the Court concludes that the FBI properly invoked Exemption

7(D) with respect to this source.

       On the present record, however, the Court cannot conclude that the FBI’s invocation of

Exemption 7(D) was proper with respect to the other seven informants. The FBI merely recites,

in boilerplate fashion, that these individuals were “in positions to have unique access to and/or

knowledge about the targets of the investigation.” Id. at 34 (Argall Decl. ¶ 59(b)). Argall also

attests that “[o]ne of these individuals provided information pursuant to a proffer agreement,”

and that, “in some instances,” information from these informants “was provided pursuant to a

Federal Grand Jury subpoena.” Id. That is not enough to show that each of these seven sources

operated under an implied understanding of confidentiality absent evidence that all of the sources

were similarly situated. Although the Court is sensitive to the FBI’s concern about ensuring

these individuals’ safety, the agency must provide some particularized justification with respect

to each source. Cf. U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 180 (1993) (“We think [a]

more particularized approach is consistent with Congress’ intent to provide ‘workable rules’ of

FOIA disclosure.” (citations omitted)); Hale v. Dep’t of Justice, 99 F.3d 1025, 1030 (10th Cir.

1996) (“When relying on an inference of confidentiality, the government’s Vaughn index and

affidavits, as well as the district court’s findings, should provide sufficient detail on a source-by-

source basis to support an assertion of implied confidentiality.” (citations omitted)). The Court

will, accordingly, deny summary judgment as to the FBI’s withholdings on the basis of implied

confidentiality for the seven informants, but will provide the agency with an opportunity to make

a more particularized showing.

       The FBI also withheld “the confidential source file numbers of two cooperating

witnesses” that “were not connected to this investigation but were . . . listed in the file on an



                                                  20
administrative page.” Dkt. 53-6 at 35 (Argall Decl. ¶ 61). The FBI uses confidential source file

numbers as an “administrative tool[] to assist in retrieving information supplied by a source.”

Dkt. 53-1 at 25. The agency contends that repeated “[d]isclosure of . . . confidential source file

numbers . . . could ultimately identify the sources because it would reveal the connections of

cooperating witnesses to the information they provided” and would ultimately “have a chilling

effect on the activities and cooperation of other confidential informants and cooperating

witnesses.” Id. at 36 (Argall Decl. ¶¶ 62, 63). The FBI further notes that “individuals can be

persuaded to continue their assistance in providing information to the FBI in the future” only if

they possess an “understanding [and assurance] of complete confidentiality.” Id. (Argall Decl.

¶ 63). Other courts in this Circuit have upheld the invocation of Exemption 7(D) to protect

confidential source file numbers. See, e.g., Williams v. FBI, 69 F.3d 1155, 1158, 1160 (D.C. Cir.

1995) (upholding the district court’s grant of summary judgment in favor of the FBI for

withholding “source symbols” and “file numbers” related to confidential informants); Stein v.

U.S. Dep’t of Justice, 134 F. Supp. 3d 457, 487 (D.D.C. 2015) (upholding withholding of

confidential source number). The Court, accordingly, concludes that the FBI properly redacted

the confidential sources numbers of the two cooperating witnesses.

               e.      Exemption 7(E)

       Finally, the FBI invoked Exemption 7(E), which “permits withholding of law

enforcement records ‘to the extent that the production of such law enforcement records or

information . . . would disclose techniques and procedures for law enforcement investigations.’”

Blackwell v. FBI, 646 F.3d 37, 41 (D.C. Cir. 2011) (quoting 5 U.S.C. § 552(b)(7)(E)). The

exemption poses a “relatively low bar”: The FBI need only “demonstrate logically how the

release of the requested information might create a risk of circumvention of the law.” Dillon v.



                                                21
Dep’t of Justice, 102 F. Supp. 3d 272, 296–97 (D.D.C. 2015) (quoting Blackwell, 646 F.3d at

42); see also Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009) (“[T]he exemption

does not force the [agency] to show . . . reasonably expected risk with certainty—only that

disclosure could reasonably be expected to create such a risk.” (emphasis in original)).

       The FBI withheld five categories of documents pursuant to Exemption 7(E). First, the

agency withheld information regarding its techniques for “questioning and [gathering]

evidence.” Dkt. 53-6 at 37–38 (Argall Decl. ¶ 66). According to Argall, the disclosure of this

information would “give criminals unwarranted insight” into the “‘routine’ plays” used by the

FBI during questioning and “tip off adversaries as to how and when those plays are used.” Id.

Second, the agency withheld information from a “non-public database used for official law

enforcement purposes” that “serves as a repository for counterterrorism and investigative data.”

Id. at 38–39 (Argall Decl. ¶ 67). Release of this information “could enable criminals to employ

countermeasures to avoid detection.” Id. Third, the FBI refused to disclose FBI Form FD-516,

which “is used by FBI [Special Agents] to report investigative accomplishments.” Id. at 39–40

(Argall Decl. ¶ 68). Argall concludes that disclosure of this form would allow “[Matthews] and

others involved in similar criminal violations [to] change their activities . . . to circumvent and

avoid detection and/or surveillance in the future. Id. Fourth, the FBI withheld “a sensitive case

file number and other . . . information” related to the FBI’s file numbering conventions, the

release of which could “identif[y] the investigative interest or priority given” to internal

investigations. Id. at 40–41 (Argall Decl. ¶ 69). According to Argall, disclosure of this

information could allow suspects to apply a “mosaic analysis” and “use these numbers . . . to

change their pattern of activity to avoid detection, apprehension or create alibis for suspected

activities.” Id. Fifth, and finally, the FBI refused to disclose “the purpose, methods, focus of



                                                 22
questioning, and results of a polygraph examination.” Id. at 41 (Argall Decl. ¶ 70). Argall

attests that this information is “not generally known to the public,” and its disclosure “would

enable criminals . . . [to] take countermeasures to defeat the effectiveness of the polygraph and

impede future investigations.” Id.

       In light of Argall’s detailed declaration, and Matthews’s failure to dispute any of the

factual assertions on which Argall premised his conclusions, the Court finds that (1) each of the

withholdings at issue was generated during the agency’s investigation of Matthews and thus

constitutes a law enforcement record, and (2) the FBI has logically connected each of its

withholdings to a reasonable expectation of risk that the law might be circumvented if the

information were disclosed. Accordingly, the Court holds that the FBI properly invoked

Exemption 7(E) to withhold the above materials related to its techniques and procedures for law

enforcement investigations.

       3.      Segregability

       The Court must also consider sua sponte whether the FBI has produced all segregable,

non-exempt information. See Morley, 508 F.3d at 1123 (“[T]he District Court ha[s] an

affirmative duty to consider the segregability issue sua sponte.” (quoting Trans-Pac. Policing

Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999))); see also Stolt-Nielsen

Transp. Group Ltd. v. United States, 534 F.3d 728, 733–35 (D.C. Cir. 2008) (“[B]efore

approving the application of a FOIA exemption, the district court must make specific findings of

segregability regarding the documents to be withheld.” (citation omitted)). To establish that all

reasonably segregable, non-exempt information has been disclosed, the FBI bears the burden of

demonstrating “with ‘reasonable specificity’” that the information it withheld cannot be further

segregated. Armstrong v. Exec. Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996).



                                                23
       Here, the FBI attests that it performed a segregability review, Dkt. 53-6 at 42–43 (Argall

Decl. ¶ 74), and it has produced a Vaughn Index identifying its withholdings, see Dkt. 24-

2. Argall testifies that, following the review, “RIDS determined that 35 pages could be released

in full without redaction as there was no foreseeable harm to an interest protected by a FOIA

exemption.” Dkt. 53-6 at 42 (Argall Decl. ¶ 74). RIDS also determined that “272 pages could

be released in part with redactions per the identified FOIA exemptions . . . .” Id. Those pages

contained “a mixture of material that could be segregated for release and material that was

withheld as release would trigger foreseeable harm to one or more interests protected by the cited

FOIA exemption.” Id. at 41–42 (Argall Decl. ¶ 74). Finally, “RIDS determined that 364 pages

were required to be withheld in their entirety.” Id. at 42 (Argall Decl. ¶ 74). To justify the

decision, Argall explains:

       RIDS determined that all information on these pages was either fully covered
       by one or more of the cited FOIA exemptions, or determined that any non-
       exempt information on these pages was so intertwined with exempt material,
       that no information could be reasonably segregated for release. Any further
       segregation of this intertwined material would employ finite resources only to
       produce disjointed words, phrases, or sentences, that taken separately or
       together, would have minimal or no informational content.

Id.

       Matthews does not challenge the FBI’s segregability analysis, and the Court has no

reason to doubt the agency’s good-faith representations. Accordingly, the Court is satisfied that

the agency has produced all segregable, non-exempt records with respect to the 671 pages that it

has processed.

B.     FOIA Waiver

       There is one additional wrinkle: The FBI concedes that its search also located “several

other files” that “were not processed under [FOIA], based on [Matthews’s] waiver of his [FOIA]



                                                 24
rights.” Dkt. 53-6 at 9–10 (Argall Decl. ¶ 18). Specifically, the FBI declined to process “those

investigative files resulting in [Matthews’s] wire fraud and bank fraud prosecutions—Case No.

1:11-cr-87 (E.D. Va.) [original E.D. Va. charge], Case No. 1:11-cr-348 (E.D. Va.) [consolidated

E.D. Va. Case], Case No. 8:10-cr-00706 (D. Md.) [original Maryland charge], and the related

motion to vacate [his] sentence, Case No. 1:12-cv-132 (E.D. Va.).” 5 Id. at 10–11 (Argall Decl.

¶ 20). “[A] categorical refusal to release documents that are in the agency’s ‘custody’ or

‘control’ for any reason other than those set forth in the Act’s enumerated exceptions

[constitutes] ‘withholding.’” Morley, 508 F.3d at 1119 (quoting McGehee v. CIA, 697 F.2d

1095, 1110 (D.C. Cir. 1983)). The Court must, accordingly, determine whether the waiver in

Matthews’s plea agreement is a valid basis upon which to withhold these documents—that is,

whether the waiver is enforceable.

       The controlling case in this Circuit is Price v. United States Dep’t of Justice Attorney

Office, 865 F.3d 676 (D.C. Cir. 2017). There, the Court of Appeals held that the government

could not “invoke [the defendant’s] FOIA waiver as a basis for denying him access to the

records . . . because, in [that] case, the government [gave] . . . no adequate rationale for enforcing

this waiver in light of the public-policy harms [the defendant] identified.” Id. at 683 (emphasis

in original). The court reasoned that, “[a]t the end of the day, a plea agreement that attempts to

waive a right conferred by a federal statute is, like any other contract, ‘unenforceable if the

interest in its enforcement is outweighed [under] the circumstances by a public policy harmed by

enforcement.’” Id. (quoting Town of Newton v. Rumery, 480 U.S. 386, 392 (1987)). Relying on



5
  Argall’s declaration identifies the following files: “Washington Field Office file 49A-WF-
228225, and Baltimore Field Office file 329E-BA-109955, with additional cross-reference serials
29-BA-C92847 Sub X serials 31508 and 31323; 29-WF-C209790 Sub G serials 1663 and 1879;
and 182B-WF-234447 serial 122.” Dkt. 53-6 at 11 n.10 (Argall Decl.).

                                                 25
the Supreme Court’s decision in Rumery, which held that a “prosecutor is permitted to consider

only legitimate criminal justice concerns in striking [a plea] bargain,” 480 U.S. at 401, the court

held that a FOIA waiver is only enforceable if it furthers a legitimate criminal justice interest,

Price, 865 F.3d at 683. Requiring this consideration “places boundaries on the rights that can be

bargained away in plea negotiations,” in light of the “uneven power dynamic [that] lurks in the

background in cases like these.” Id. at 681, 683. Although the U.S. Attorney’s Office in Price

failed to articulate “any legitimate criminal justice interest served,” id. at 681, the D.C. Circuit

recognized that a FOIA waiver might be enforceable under different circumstances, id. at 683

(“To be clear, we do not hold that FOIA waivers in plea agreements are always unenforceable.”).

       The FBI argues that, unlike in Price, there are three criminal justice interests that justify

the enforcement of Matthews’s FOIA waiver: (1) “the finality of [the plea] agreement in which

[Matthews] voluntar[ily] acknowledged that his ‘attorney [had] rendered effective service,’” Dkt.

62 at 3; (2) the need to prevent a backlog of FOIA litigation in federal courts, Dkt. 53-1 at 7; and

(3) the interest in preventing a drain on the FBI’s resources through onerous or duplicative

production, id. None is availing.

       The FBI’s first asserted interest—finality—was expressly rejected by the Price Court.

The Price decision states:

       FOIA waivers promote finality only by making it more difficult for criminal
       defendants to uncover exculpatory information or material showing that their
       counsel provided ineffective assistance. That argument takes the finality
       interest too far. After all, a defendant can never waive [its] right to bring a
       colorable claim of ineffective assistance of counsel, even though such claims
       undermine finality.

Price, 865 F.3d at 682 (citations omitted). Indeed, the FBI’s argument that Matthews should be

held to the representation in the plea agreement that his attorney had rendered effective service in

representing him not only runs counter to Price, but it also contravenes the D.C. Circuit’s

                                                  26
decision in United States v. Guillen, 561 F.3d 527 (D.C. Cir. 2009), which holds that a plea

agreement cannot preclude an appeal based on ineffective assistance of counsel. Id. at 530 (“[A]

waiver should not be enforced insofar as the defendant makes a colorable claim he received

ineffective assistance of counsel in agreeing to the waiver.” (citations omitted)).

       The FBI’s second asserted interest fares no better. The agency contends that enforcing

Matthews’s waiver will prevent the “expense of time that will [otherwise] be borne by this

Court” if he is permitted to seek records related to his prosecution. Dkt. 53-1 at 7. That does not

constitute a criminal justice interest. As a threshold matter, it is unclear whether enforcing

Matthews’s waiver would in fact save the Court time or resources. As evidenced by this opinion,

the Court must adjudicate Matthews’s FOIA suit, regardless of whether the waiver is enforced,

and resolving the FOIA waiver issue itself requires judicial resources. But, even assuming that

doing so would conserve judicial resources, that does not explain how enforcing Matthews’s

waiver advances a criminal justice interest. See Price, 865 F.3d at 682 (citing “efficient and

effective prosecution” as an example of a legitimate criminal justice interest). The FBI’s

rationale, moreover, runs counter to Congress’s intent that courts serve as the “appropriate forum

for protecting the public’s rights to information through judicial review of denials of requests to

release materials.” FDIC v. Ernst & Ernst, 677 F.2d 230, 232 (2d Cir. 1982) (citing GTE

Sylvania, Inc. v. Consumers Union of the U.S., Inc., 445 U.S. 375, 387 (1980)).

       Finally, the FBI alleges that Matthews’s FOIA waiver prevents the government from

having to “drain enormous amounts of . . . resources” on FOIA litigation and produce allegedly

duplicative documents that Matthews may have “already received . . . in substance” pursuant to

the agreed discovery order in his prosecution. See Dkt. 53-1 at 5–7. Although the “allocation of

criminal justice resources” may constitute a legitimate criminal justice interest for waiving a



                                                 27
defendant’s FOIA rights, see Price, 865 F.3d at 681, the mere fact that Matthews, at one point,

had access to some of the documents related to his prosecution is not a sufficient basis for the

agency to categorically withhold all such documents in a later FOIA litigation. That is especially

so because the FBI has offered no evidence to substantiate its claim that processing Matthews’s

request would be so onerous on “the FBI and two United States Attorneys’ Offices” as to affect

their allocation of criminal justice resources. Dkt. 53-1 at 7; see also Dkt. 53-2 at 1–2 (SUMF

¶¶ 3–10). The FBI’s declarations do not, for instance, estimate how many pages of records

would need to be processed or the time needed to process them. Absent that basic information,

the Court cannot conclude that Matthews’s request would unnecessarily drain criminal justice

resources. Indeed, the available evidence seems to suggest the opposite. Argall attests that the

FBI has already located the records, Dkt. 53-6 at 10 (Argall Decl. ¶ 18), so the only additional

step would be to process them. Nothing in the record suggests that resources from the criminal

division of the FBI or the U.S. Attorney’s Office would be required to do so. Rather, RIDS—the

records division of the FBI—is in charge of responding to Matthews’s FOIA request, and the

Civil Division of the U.S. Attorney’s Office is litigating this case. Accordingly, the government

has failed to establish—on the present record—any legitimate criminal justice interest served by

Matthews’s FOIA waiver.

        On the other hand, Price underscores that there is a strong countervailing interest in

allowing those convicted of crimes to avail themselves of FOIA. See 865 F.3d at 682. The court

noted, in particular:

        FOIA plays a significant role in uncovering undisclosed Brady material and
        evidence of ineffective assistance of counsel, and in practice has led to
        uncovering records relevant to ineffective-assistance-of-counsel claims, such
        as plea offers not communicated by defense counsel to clients. . . . FOIA thus




                                                 28
       provides an important vehicle for vindicating significant rights . . . . Indeed,
       in some cases it is the only vehicle.

Id. (internal citations omitted) (emphasis in original). That is precisely the purpose for which

Matthews alleges that he filed his FOIA request: to demonstrate that his counsel was ineffective

for failing to communicate an early plea agreement. See Dkt. 59 at 1. The government has not

addressed—or even acknowledged—this countervailing interest.

       In sum, because the FBI has failed to substantiate—on the particular facts of this case—

that the enforcement of Matthews’s FOIA waiver would further a legitimate criminal justice

interest that outweighs Matthews’s interest in accessing records related to his prosecution, the

Court concludes that the agency is not entitled to withhold those documents on the basis of

Mathews’s FOIA waiver. The Court will, accordingly, deny summary judgment as to that

defense.

                                         CONCLUSION
       For the foregoing reasons, the FBI’s motion is GRANTED in part and DENIED in part.

The motion is DENIED with respect to the FBI’s waiver defense. Moreover, because the Court

requires additional information to assess portions of the FBI’s withholdings pursuant to FOIA

Exemptions 6 and 7(D), the motion is DENIED with respect to those withholdings. In all other

respects, however, the motion is GRANTED.

       It is further ORDERED that the FBI shall process and produce the non-exempt records

related to Matthews’s prosecution as soon as practicable.

       It is further ORDERED that the FBI shall file a status report with the Court on or before

May 1, 2019, regarding the status of its productions.

       SO ORDERED.




                                                29
                            /s/ Randolph D. Moss
                            RANDOLPH D. MOSS
                            United States District Judge


Date: March 31, 2019




                       30
