                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       August 11, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JOHN THOMAS WATTERS,

             Plaintiff-Appellant,

v.                                                        No. 13-5121
                                              (D.C. No. 4:10-CV-00270-GKF-PJC)
DEPARTMENT OF JUSTICE;                                    (N.D. Okla.)
DEPARTMENT OF JUSTICE -
CRIMINAL DIVISION; FEDERAL
BUREAU OF INVESTIGATION;
EXECUTIVE OFFICE OF THE UNITED
STATES ATTORNEY; DEPARTMENT
OF THE TREASURY; BUREAU OF
ALCOHOL, TOBACCO, FIREARMS,
EXPLOSIVES; INTERNAL REVENUE
SERVICE,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, PORFILIO and O’BRIEN, Circuit Judges.




*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      John Thomas Watters brought this action under the Freedom of Information

Act (FOIA), 5 U.S.C. § 552, and the Privacy Act (PA), 5 U.S.C. § 552a, seeking

records that might exonerate him from his federal drug-related convictions. The

district court granted summary judgment to Defendants the Federal Bureau of

Investigation (FBI), the Executive Office of the United States Attorney (EOUSA),

the Department of Justice-Criminal Division (DOJ), the Bureau of Alcohol, Tobacco,

Firearms, and Explosives (ATF), and the Internal Revenue Service (IRS).

Mr. Watters appeals, and exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                           I

      Mr. Watters is presently in federal custody serving a 240 month sentence for

crimes committed while participating in a marijuana grow operation. We affirmed

his convictions on direct appeal, United States v. Watters, 237 F. App’x 376

(10th Cir. 2007), and after the district court denied his 28 U.S.C. § 2255 motion, we

denied a certificate of appealability, United States v. Watters, 363 F. App’x 653

(10th Cir. 2010).

      During the course of his post-conviction proceedings, Mr. Watters submitted

identical FOIA requests to the FBI, the EOUSA, and the DOJ, seeking any material

concerning him from 2002 through 2007. He also requested information concerning

persons who he claims were involved in his criminal activities, namely Michelle

Quisenberry, Kenneth Jones, and Jerry Harris. After much back and forth, including

various inter-agency referrals, Defendants searched their respective databases and


                                         -2-
processed hundreds of pages of material. Much of that material was released to

Mr. Watters in full or redacted form, but much of it was not. Defendants claimed the

redacted and undisclosed information was protected under certain FOIA exemptions.

      Mr. Watters initiated this action to compel full disclosure. Claiming that

Defendants were “in direct violation of the [FOIA],” he sought an “Order requiring

prompt disclosure and release of . . . all . . . documents abusively withheld from

[him].” R., Vol. I at 136. Defendants moved for summary judgment, arguing that

they had performed adequate searches and that all information withheld from

Mr. Watters was exempt from disclosure under relevant provisions of the FOIA.

They also argued that Mr. Watters had no cognizable claim against the EOUSA

because he failed to pay his processing fees and did not perfect an administrative

appeal. To support their motion for summary judgment, Defendants filed

declarations detailing how the FOIA requests were processed and which exemptions

they invoked to justify withholding the information.

      Based on Defendants’ declarations, the district court determined that

Defendants had conducted adequate searches and that any information not released to

Mr. Watters was lawfully withheld under specific FOIA exemptions. The court also

concluded that Mr. Watters had no cognizable claim against the EOUSA because he

neither paid his required processing fee nor perfected an administrative appeal. Thus,

the court granted Defendants’ motion for summary judgment. Mr. Watters now

challenges the district court’s decision.


                                            -3-
                                            II

      A. Legal Standards

      “We review a district court’s grant of summary judgment de novo, applying

the same legal standard used by the district court, drawing all reasonable inferences

in favor of the nonmoving party—in this case, in favor of [Mr. Watters].” Hull v.

Internal Revenue Serv., 656 F.3d 1174, 1177 (10th Cir. 2011). The “FOIA provides

the public a right of access, enforceable in court, to federal agency records, subject to

nine specific exemptions.” Id. (internal quotation marks omitted). It is the agency’s

burden to show that undisclosed information is protected by a particular exemption.

Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007). We construe

the FOIA broadly in favor of disclosure and “narrowly circumscribe[]” its

exemptions. Id. “‘[A]ny reasonably segregable portion of a record shall be provided

to any person requesting such record after deletion of the portions which are

exempt.’” Id. (quoting 5 U.S.C. § 552(b)).1


1
       Although Mr. Watters initiated this action under both the FOIA and the
Privacy Act, the district court evaluated the propriety of the withheld information
only under the FOIA. Mr. Watters does not challenge that approach on appeal, nor
does he contest any Privacy Act exemption. Indeed, his opening brief makes only
isolated references to the Privacy Act. See Aplt. Br. at 3, 5, 16, 26. We recognize
that Mr. Watters is a pro se litigant and that his pleadings are entitled to a liberal
construction. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Nevertheless, he is still obligated to comply with the same procedural rules that
govern other litigants. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005). Because Mr. Watters has failed to adequately develop any
issue arising under the Privacy Act, we decline to consider that theory. See Bronson
v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to
                                                                               (continued)
                                           -4-
      “To satisfy its burden of proof under [the] FOIA, an agency typically submits

affidavits. These:

      [a]ffidavits must show, with reasonable specificity, why the documents
      fall within the exemption. The affidavits will not suffice if the agency’s
      claims are conclusory, merely reciting statutory standards, or if they are
      too vague or sweeping. If the affidavits provide specific information
      sufficient to place the documents within the exemption category, if the
      information is not contradicted in the record, and if there is no evidence
      in the record of agency bad faith, then summary judgment is appropriate
      without in camera review of the documents.

Hull, 656 F.3d at 1177-78 (quoting Quinon v. FBI, 86 F.3d 1222, 1227 (D.C. Cir.

1996)); see also Anderson v. Dep’t of Health & Human Servs., 907 F.2d 936, 942

(10th Cir. 1990) (explaining that court may rely on detailed affidavits to resolve

FOIA summary judgment motions).

      B. Exhaustion

      Before getting to the merits, we initially note, as a prudential matter, that

Mr. Watters did not exhaust his administrative remedies against the EOUSA.

See Hull, 656 F.3d at 1181-83 (explaining that exhaustion under the FOIA is a

prudential consideration rather than jurisdictional, but it nevertheless “remains a

hurdle that FOIA plaintiffs must generally clear in order to obtain relief”). First,

Mr. Watters did not pay his administrative processing fees to the EOUSA. When he

filed his request, the EOUSA notified him that by making it he was agreeing to pay

$25.00 in search fees and would be notified if his fees exceeded that amount. After

consider arguments that are not raised, or are inadequately presented, in an
appellant’s opening brief.”).


                                          -5-
locating many documents, the EOUSA alerted Mr. Watters that his estimated search

fees would be $140.00, which he also agreed to pay. But after the EOUSA calculated

a final fee of $112.00 and released the information to Mr. Watters, he refused to pay.

      Second, and perhaps more importantly, Mr. Watters failed to perfect a proper

administrative appeal. After the EOUSA processed Mr. Watters’ request, it informed

him that he could file an appeal with the Office of Information Policy (OIP). The

EOUSA instructed him how to file his appeal and alerted him that it must be received

by OIP within sixty days. Rather than heed those instructions, however, Mr. Watters

requested an appeal with the EOUSA. Although no appeal was filed, he amended his

complaint and added allegations against the EOUSA. But this deprived OIP of an

opportunity to affirm the EOUSA’s decision, correct any errors, and add to the record

upon which Mr. Watters now asks us to review the propriety of the EOUSA’s

decision. See Hull, 656 F.3d at 1183 (holding that review may not be barred where

the purposes of exhaustion—“namely, preventing premature interference with agency

processes, affording the parties and the courts the benefit of the agency’s experience

and expertise, or compiling a record which is adequate for judicial review—have all

been served” (internal quotation marks, brackets, and ellipsis omitted)). Under these

circumstances, we decline to review any claim against the EOUSA.

      C. Adequacy of Searches

      As for the other Defendants, they must show that their “search for responsive

documents was adequate, which is determined under a standard of reasonableness,


                                         -6-
and is dependent upon the circumstances of the case.” Trentadue v. FBI, 572 F.3d

794, 797 (10th Cir. 2009) (brackets, ellipsis, and internal quotation marks omitted).

We conclude the searches conducted here were adequate and reasonably calculated to

uncover all relevant documents.

      According to a declaration signed by Dennis J. Argall, the Assistant Section

Chief in the FBI’s Records Management Division, the FBI assigned Mr. Watters’

request “FOIPA Number 1136453-000.” R., Vol. I at 205. The FBI advised

Mr. Watters that it was searching the indices of its Central Records System, which

Mr. Argall described in detail over more than three pages of his declaration. See id.

at 207-210. Mr. Argall also described with precision the parameters of the searches

conducted. He explained that the searches yielded responsive information located in

an investigative file that the FBI initially deemed exempt from disclosure under

5 U.S.C. § 552(b)(7)(A) (exempting law enforcement records that “could reasonably

be expected to interfere with enforcement proceedings”). The FBI later determined

that exemption “went away” after Mr. Watters initiated this litigation. Id. at 206.

Hence, the FBI processed 605 pages and released those documents to Mr. Watters,

subject to various exemptions that were itemized in a Vaughn index. See Vaughn v.

Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973).

      John E. Cunningham, III, an attorney for the DOJ, stated that Mr. Watters’

FOIA request was initially closed because he failed to provide information needed to

process his request. When he submitted that information, the DOJ opened a new file,


                                         -7-
“CRM-20100074P.” Id. at 240. The DOJ then searched its central index of records,

which Mr. Cunningham indicated was “the most comprehensive system maintained

by the Criminal Division.” Id. A search using variations of Mr. Watters’ name

turned up no responsive information, but the DOJ notified Mr. Watters that his

records may be maintained by the EOUSA. Later, upon realizing that other sections

of the Criminal Division had not been searched, the DOJ conducted expedited

searches of its Narcotics and Dangerous Drugs Section, Organized Crime Drug

Enforcement Task Force, Office of Enforcement Operations FOIA/PA Unit, and

Electronic Surveillance Unit, all of which yielded no records (other than Mr. Watters’

FOIA requests). Mr. Cunningham deduced this was because Mr. Watters was

prosecuted by the U.S. Attorney’s Office, not the DOJ.

       Peter J. Chisholm, Acting Chief of the Disclosure Division for the ATF,

submitted a declaration attesting that the ATF had received a referral of

16 documents from the FBI consisting of one page each. All of these documents

were withheld under exemption (b)(3) of the FOIA, see 5 U.S.C. § 552(b)(3)

(exempting certain information protected from disclosure by statute), because the

documents “consisted of [firearms] trace data,” R., Vol. I at 292. Mr. Chisholm

acknowledged that the ATF could not locate any records relating to the FBI’s original

referral. However, Mr. Chisholm explained that when Mr. Watters filed his

complaint, the ATF searched its FOIA database and confirmed that it had received

and denied the referral. Nevertheless, because those documents had been lost, the


                                         -8-
ATF undertook a thorough examination of its office, searching all of its 2011 files

and the work spaces of its Disclosure Specialists, a paralegal, and a retired team

leader. Because the original referral documents were not found, the ATF requested

copies from the FBI and verified that all 16 documents were exempt. The ATF also

searched its communications system database and case management system but found

no responsive information. The ATF declined to search for or release any third-party

records concerning Ms. Quisenberry, Mr. Harris, or Mr. Jones, citing Exemption

7(C). See 5 U.S.C. § 552(b)(7)(C) (exempting law enforcement records that “could

reasonably be expected to constitute an unwarranted invasion of personal privacy”).

      As for the IRS, Carlton King, an attorney in the IRS’s Office of the Chief

Counsel, submitted a declaration stating that the IRS had received a 58-page referral

from the EOUSA and a 12-page referral from the FBI. The IRS eventually released

all of these materials to Mr. Watters, and he did not independently request any other

information. Consequently, no further search was conducted.

      We conclude, based on the forgoing declarations, that Defendants satisfied

their burden to conduct reasonably adequate searches.

      D. Exemptions

      This brings us to the exemptions challenged by Mr. Watters. He first seems to

contest the withholding of information under FOIA Exemptions 6 and 7(C).

See 5 U.S.C. §§ 502(b)(6), (b)(7)(C). Exemption 6 allows an agency to withhold

“personnel and medical files and similar files the disclosure of which would


                                         -9-
constitute a clearly unwarranted invasion of personal privacy.” Id., § 502(b)(6).

Exemption 7(C) allows an agency to withhold “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.” 5 U.S.C. § 502(b)(7)(C).2 Both of these

exemptions protect third-party privacy interests and both require that we balance the

public interest in disclosure against the privacy interest at stake. See Trentadue,

501 F.3d at 1232-36.

      Here, the FBI and the ATF invoked Exemptions 6 and 7(C) to withhold the

names and identifying information of many individuals, including FBI special agents,

an assistant U.S. Attorney, a U.S. Marshal Service employee, a Federal Correctional

Institution employee, an investigator for the New Hampshire Attorney General’s

Office, third-parties of investigative interest, state and local law enforcement

employees, and third-parties who provided information to the FBI or were merely

mentioned during the course of Mr. Watters’ investigation. Notwithstanding the

compelling privacy interests of these individuals, Mr. Watters seems to contend that

the public interest weighs in favor of disclosure so that he can obtain what he

believes to be exculpatory information and prove his innocence. He contends the


2
      We have adopted a per se rule that all records and information compiled by a
law enforcement agency are “compiled for law enforcement purposes.” Jordan v.
U.S. Dep’t of Justice, 668 F.3d 1188, 1197 (10th Cir. 2011) (internal quotation marks
omitted).


                                         - 10 -
public has an interest in knowing about the government’s wrongdoing in procuring

Ms. Quisenberry’s testimony and failing to investigate Mr. Jones and Mr. Harris. We

perceive at least three problems with this argument.

      First, as the district court observed, Mr. Watters has provided no evidence of

government wrongdoing. See Martin v. Dep’t of Justice, 488 F.3d 446, 458

(D.C. Cir. 2007) (“‘If the public interest is government wrongdoing, then the

requester must produce evidence that would warrant a belief by a reasonable person

that the alleged Government impropriety might have occurred.’” (quoting Boyd v.

Dep’t of Justice, 475 F.3d 381, 387 (D.C. Cir. 2007)). Instead, Mr. Watters merely

makes “unsubstantiated assertions of government wrongdoing,” which is insufficient

to establish a public interest weighing in favor of disclosure. Id. (internal quotation

marks omitted). Second, Mr. Watters fails to establish a public interest sufficient to

overcome the significant privacy interest that third-parties have in preventing

disclosure of investigative material. See Nation Magazine v. United States Customs

Serv., 71 F.3d 885, 894 (D.C. Cir. 1995) (holding that “an obvious privacy interest

. . . extends to third parties who may be mentioned in investigatory files, as well as to

witnesses and informants who have provided information during the course of an

investigation”). And third, Mr. Watters offers nothing to suggest that disclosure

would contribute to the public’s understanding of Defendants’ activities; instead, he

asserts his own personal interest in securing his release. See Trentadue, 501 F.3d at

1233 (“We must assess the extent to which disclosure would contribute to the public


                                         - 11 -
understanding of the operations or activities of the government, not the interests of

the requesting party.” (internal quotation marks omitted)). Under these

circumstances, Defendants properly withheld the names and identifying information

of law enforcement officers and other third parties under Exemptions 6 and 7(C).

      Turning to Exemption 7(A), it allows an agency to withhold “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 interfere with enforcement proceedings.” 5 U.S.C. § 502(b)(7)(A). The

FBI withheld eight pages under Exemption 7(A), claiming the documents “contain

information on a third party of interest who is currently in fugitive status.” R., Vol. I

at 230. The FBI averred that disclosing this information could compromise an open

investigation, and thus it invoked Exemption 7(A) to prevent disclosure. On appeal,

Mr. Watters acknowledges that a third party is an active fugitive, though he questions

whether there is an ongoing effort to capture the fugitive. Mr. Watters contends that

Exemption “7(A) is not available where agents, as in this case[,] simply go through

the motions.” Aplt. Br. at 38. This is insufficient to establish that the undisclosed

material was improperly withheld under Exemption 7(A).

      Lastly, Exemption 7(D) allows an agency to withhold information prepared for

law enforcement purposes that “could reasonably be expected to disclose the identity

of a confidential source, . . . and, in the case of a record or information compiled by

criminal law enforcement authority in the course of a criminal investigation . . .,


                                          - 12 -
information furnished by a confidential source.” 5 U.S.C. § 502(b)(7)(D). The FBI

invoked this exemption to “withhold information provided by commercial/private

companies and other non-government entities under an expressed assurance of

confidentiality.” R., Vol. I at 231. Mr. Watters does not argue that the exemption

was inapplicable for this purpose. Instead, he contends that Exemption 7(D) is not

available where the “names [of the confidential sources] (Jones, Quisenberry, Harris)

are well known.” Aplt. Br. at 39. But at least one court has held that “the protections

of 7(D) apply even if a confidential source is later revealed.” Rimmer v. Holder,

700 F.3d 246, 253 n.4 (6th Cir. 2012). Mr. Watters retorts that he only wants to

know “what interaction (if any) these criminals had with Government agents,” Aplt.

Br. at 39, but this does not address the propriety of the exemption for the purposes

claimed here. Thus, the district court properly granted Defendants’ motion for

summary judgment.3

      Accordingly, the judgment of the district court is affirmed.


                                                     Entered for the Court


                                                     Mary Beck Briscoe
                                                     Chief Judge



3
       To the extent Mr. Watters raises any segregability issue, we have reviewed the
record and agree with the district court’s conclusion that Defendants have
“adequately specif[ied] ‘which portions of the document[s] are disclosable and which
are allegedly exempt.’” R., Vol. I at 387 (quoting Vaughn, 484 F.2d at 827).


                                         - 13 -
