 1

 2

 3

 4

 5

 6

 7                         IN THE UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA
 8

 9

10
     ANGELA CLEMENTE,
11                                                         No. 1:08-cv-01252 BJR
                       Plaintiff,
12                                                         ORDER GRANTING RENEWED
                      v.                                   MOTIONS FOR SUMMARY
13
                                                           JUDGMENT IN PART AND DENYING
14   FEDERAL BUREAU OF INVESTIGATION, et al.,              THE REMAINDER WITHOUT
                                                           PREJUDICE
15                     Defendants.
16

17
            Angela Clemente brings this suit under the Freedom of Information Act
18
     (“FOIA”), 5 U.S.C. § 552, against the Federal Bureau of Investigation, a component of
19
     the U.S. Department of Justice, and other unnamed agencies (collectively, “the FBI”).
20
     Before the Court are defendants’ renewed motion for summary judgment [Dkt. # 51] and
21

22   plaintiff’s renewed cross-motion for summary judgment [Dkt. # 57]. For the reasons set

23   forth below, the Court grants the FBI’s motion in part and denies the remainder and Ms.
24   Clemente’s motion without prejudice.
25



     ORDER-1
                                          I. BACKGROUND
 1
              The facts underlying this case, described at greater length in an earlier opinion,
 2

 3   see Clemente v. F.B.I., 741 F. Supp. 2d 64 (D.D.C. 2010), are recited briefly as relevant

 4   here.
 5            Angela Clemente has spent many years researching the late Gregory Scarpa, Sr., a
 6
     high-ranking Mafia member who served as an FBI informant. Id. at 71. The relationship
 7
     between Mr. Scarpa, his FBI handler, and the commission of several violent crimes has
 8
     been the subject of considerable reporting, see, e.g., Fredric Dannen, The G–Man and the
 9

10   Hit Man, NEW YORKER, Dec. 16, 1996; John Connolly, Who Handled Who?, NEW YORK,

11   Dec. 2, 1996, at 46, and at least one prosecution, see People v. DeVecchio, N.Y. Misc.

12   LEXIS 7827 (N.Y. Sup. Ct. Nov. 1, 2007).
13            In April 2008, Ms. Clemente sent a letter to the records division of FBI
14
     headquarters requesting Mr. Scarpa’s unredacted FBI file. Clemente, 741 F. Supp. 2d at
15
     71. She sent another copy of the letter that May. Id. In June, the FBI confirmed that it
16
     had received both of Ms. Clemente’s letters and was processing them as FOIA requests.
17

18   Id.     In July, Ms. Clemente’s counsel informed the FBI by certified mail that Ms.

19   Clemente wanted to “clarify her request” for documents, which was “directed to any

20   informant file on Mr. Scarpa, including in particular any Top Echelon (‘TE’) Informant
21
     File.” Id. (quoting 2d Am. Compl., Ex. 4 at 1). Counsel further requested that the
22
     documents be placed in a particular order, that Ms. Clemente be sent copies of only the
23
     first 500 pages of responsive documents, and that she be granted a waiver of the copying
24
     and processing fees. Id. at 71–72.
25



     ORDER-2
            Ms. Clemente says that, on the same date in July, her counsel sent a second letter
 1
     to the FBI requesting “all records on or pertaining to Gregory Scarpa wherever they may
 2

 3   be located or filed in whatever form or format they are maintained.” Id. (quoting 2d Am.

 4   Compl., Ex. 9 at 1). This second letter did not request that the records be placed in any
 5   particular order, nor did it request that Ms. Clemente be sent only 500 pages of
 6
     responsive documents. Id.
 7
            Ms. Clemente filed this action on July 21, 2008. In October of that year, David
 8
     M. Hardy of the FBI’s records management division informed Ms. Clemente that the
 9

10   agency had located approximately 1,170 pages of documents potentially responsive to her

11   request, and that her application for a fee waiver had been denied. Id. Ms. Clemente sent

12   the FBI a check to cover the duplication fees for all of those documents and appealed the
13   denial of a fee waiver. Id.
14
            That November, the FBI released 500 pages of documents to Ms. Clemente and
15
     filed a motion for summary judgment, attaching an affidavit that classified the redactions
16
     made from all 500 pages. Id. at 73; Declaration of David M. Hardy (attached to Defs.’
17

18   Mot. for Summ. J.) (“1st Hardy Decl.”). In March 2009, the FBI released 653 additional

19   pages of records. Clemente, 741 F. Supp. 2d at 73. Ms. Clemente filed a cross-motion

20   for summary judgment.         Id.   Defendants filed a supplemental motion for summary
21
     judgment several months later, including an affidavit classifying the redactions made
22
     from a 55-page sample of the additional pages, which had been selected by Ms.
23
     Clemente. Second Declaration of David M. Hardy (attached to Defs.’ Supplemental Mot.
24
     for Summ. J.) (“2d Hardy Decl.”), at ¶ 4.
25



     ORDER-3
            On September 28, 2010, U.S. District Court Judge Paul L. Friedman ruled on
 1
     those motions. Judge Friedman found that Ms. Clemente was entitled to a waiver of the
 2

 3   fees associated with the search for and duplication of the records she requested.

 4   Clemente, 741 F. Supp. 2d at 74–77 (granting fee waiver under 5 U.S.C. §
 5   552(a)(4)(A)(iii)). He also found that the FBI had conducted an adequate search for
 6
     documents responsive to Ms. Clemente’s FOIA request. First, Judge Friedman ruled that
 7
     the FBI was not required to comply with the requests contained in Ms. Clemente’s
 8
     second July 2008 letter, because the FBI had submitted a sworn statement that it had
 9

10   never received the letter and Ms. Clemente had produced no evidence to the contrary. Id.

11   at 78. Although Ms. Clemente presented the second letter in litigation, she was required

12   to exhaust her administrative remedies before seeking relief in court. Id. at 78–79. Next,
13   Judge Friedman determined that Ms. Clemente’s request for “any informant file on Mr.
14
     Scarpa” could reasonably be read as limited to informant files whose primary subject was
15
     Mr. Scarpa, and that the FBI had conducted a search that was reasonably designed to
16
     locate such files. Id. at 79. Finally, Judge Friedman ruled that the FBI was not required
17

18   to search for files in its New York field office, nor in any system beyond its Central

19   Records System. Id. at 78–79. The FBI could limit its search to its headquarters because

20   the request was only submitted to that location, id. at 80 (citing 28 C.F.R. §§ 16.3, 16.41;
21
     Fischer v. U.S. Dep’t of Justice, 596 F. Supp. 2d 34, 43 n.9 (D.D.C. 2009)), and could
22
     search only its Central Records System because it had not received a request to search
23
     any further, id. at 78, and, implicitly, because such a search was “reasonably calculated to
24
     recover all relevant documents,” id. at 77 (quoting Valencia-Lucena v. U.S. Coast Guard,
25
     180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542

     ORDER-4
     (D.C. Cir. 1990))). Judge Friedman further ruled that the FBI was not obligated to
 1
     release the documents underlying two “placeholder” pages, because one set of documents
 2

 3   was housed in the New York field office, where the FBI was not required to search for

 4   files, and the other referred only to a document that had been mis-indexed and therefore
 5   was not a part of Mr. Scarpa’s informant file. Id. at 79–80. Judge Friedman proceeded to
 6
     address the FBI’s justifications for the redactions it had made from the documents that it
 7
     released to Ms. Clemente.
 8
            Judge Friedman first reviewed the redactions made pursuant to FOIA Exemption
 9

10   2, which applies to information “related solely to the internal personnel rules and

11   practices of an agency.” 5 U.S.C. § 552(b)(2). Under the then-current law of this circuit,

12   information was covered by Exemption 2 if it was “used for predominantly internal
13   purposes,” Crooker v. Bureau of Alcohol Tobacco & Firearms, 670 F.2d 1051, 1073
14
     (D.C. Cir. 1981) (en banc), and either its “disclosure [might] risk circumvention of
15
     agency regulation” or it “relate[d] to trivial administrative matters of no genuine public
16
     interest,” Schwaner v. Dep’t of Air Force, 898 F.2d 793, 794 (D.C. Cir. 1990) (internal
17

18   quotation marks and citations omitted). Judge Friedman ruled that (1) FBI informant

19   codes and the files numbers associated with those codes were properly withheld under

20   Exemption 2 because “[t]he means by which the FBI refers to informants in its
21
     investigative files is a matter of internal significance in which the public has no
22
     substantial interest,” Clemente, 741 F. Supp. 2d at 82 (quoting Lesar v. Dep’t of Justice,
23
     636 F.2d 472, 486 (D.C. Cir. 1980)) (brackets in Clemente); that (2) the FBI could not
24
     withhold references to the number of FBI informants reporting on Mafia issues if those
25
     references were of “only historical significance,” id. at 82–83; that (3) the FBI could not

     ORDER-5
     withhold references to the dispensation of “operational funds,” id. at 83; and that (4) the
 1
     Vaughn index submitted by the FBI “provided the Court with no means by which it can
 2

 3   determine whether the information withheld [on the grounds that it] relates to techniques

 4   whose disclosure could result in evasion of the law,” actually presented that risk, id.
 5          Judge Friedman went on to examine the redactions made under FOIA Exemption
 6
     7, which protects “records or information compiled for law enforcement purposes,” the
 7
     disclosure of which would cause an enumerated harm. See 5 U.S.C. § 552(b)(7). Judge
 8
     Friedman concluded that because “the records in Mr. Scarpa’s file ‘pertain to the
 9

10   investigation of the activities of subject’s involvement as a [Top Echelon] informant for

11   the FBI and his involvement in [La Cosa Nostra],’” Clemente, 741 F. Supp. 2d at 84

12   (quoting 1st Hardy Decl. ¶ 40), they were “compiled for law enforcement purposes”
13   within the meaning of FOIA.      He then considered whether the FBI had demonstrated
14
     that disclosure would cause one of the harms against which Exemption 7 protects. Judge
15
     Friedman concluded that the agency’s declarations were insufficiently detailed to allow
16
     the court to determine whether certain redacted information          “could reasonably be
17

18   expected to constitute an unwarranted invasion of personal privacy,” 5 U.S.C. §

19   552(b)(7)(C). Clemente, 741 F. Supp. 2d at 86. He ordered that “[i]n each instance in

20   which it is not clear from context that information redacted as subject to Exemption 7(C)
21
     reveals a name or other basic identifying information, such as an address—and
22
     particularly where a substantial amount of text has been redacted—the FBI must
23
     [provide] individualized and more detailed descriptions of the information not disclosed.”
24
     Id. As to Exemption 7(D), which protects confidential sources and the information that
25
     they provide, Judge Friedman approved the withholding of the source codes that

     ORDER-6
     identified confidential informants, as well as the identities of informants to whom no
 1
     source code was assigned. Id. at 87. Finally, Judge Friedman found that the FBI could
 2

 3   not “rely upon the vaguely worded categorical description it has provided,” id. at 88, to

 4   justify the withholding of “information describing ‘techniques and procedures used in
 5   law enforcement investigations regarding the handling of confidential informants,’” id.
 6
     (quoting 1st Hardy Decl. ¶ 66), under Exemption 7(E). Rather, he ruled, the FBI “must
 7
     provide evidence from which the Court can deduce something of the nature of the
 8
     techniques in question,” id., before the Court could conclude that “such disclosure could
 9

10   reasonably be expected to risk circumvention of the law,” 5 U.S.C. § 552(b)(7)(E). Judge

11   Friedman also ruled that under Exemption 7(E), as under Exemption 2, the FBI could

12   withhold references to the number of FBI informants currently reporting to the FBI on
13   Mafia issues, but not “[r]eferences to the number of informants operative in the 1960s.”
14
     Clemente, 741 F. Supp. 2d at 88. He did not address whether the symbol and file
15
     numbers of confidential sources could be withheld under Exemption 7(D), because he
16
     had already ruled that those categories of information were properly withheld under
17

18   Exemption 2. Id. at 87.

19          Judge Friedman granted summary judgment to Ms. Clemente on the issue of the

20   fee waiver, and denied without prejudice the parties’ motions for summary judgment on
21
     the remaining questions. He directed the FBI to supplement its Vaughn index and
22
     instructed the parties that if they could “agree on a representative sample of documents
23

24

25



     ORDER-7
     for which the FBI will produce a more detailed Vaughn index, they should do so.” Id. at
 1
     89.1
 2

 3          The parties agreed that the FBI would produce a new Vaughn index of a

 4   representative sample of documents selected by plaintiff, who submitted a list of
 5   approximately 192 pages for this purpose.        Fourth Declaration of David M. Hardy
 6
     (attached to Defs.’ Renewed Mot. For Summ. J.) (“4th Hardy Decl.”), at ¶ 9. The FBI
 7
     reprocessed this sample of pages, releasing some information that it had previously
 8
     withheld and changing its justifications for some redactions that it maintained.      In
 9

10   accordance with Judge Friedman’s decision, the agency released the amounts of money

11   paid to informants, which had been redacted from 51 of the 192 sample pages, id. ¶ 11

12   n.2, and historical information regarding the number of informants reporting on Mafia
13   issues, which had been redacted from 11 pages, id. ¶ 11 n.3. (All 11 of those pages had
14
     also contained redactions of the sums paid to informants. Compare id. ¶ 11 n.2 with id. ¶
15
     11 n.3.) The FBI also made what it describes as “additional discretionary releases” of
16
     information previously redacted from 26 pages. Id. ¶ 10.
17

18          After defendants filed their renewed motion for summary judgment and plaintiff

19   filed her renewed cross motion, the case was reassigned to this district judge.

20                                  II. LEGAL STANDARDS
21
            a. The Freedom of Information Act
22
            FOIA was enacted so that citizens could discover “what their government is up
23
     to.” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749,
24
     773 (1989). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the
25
     1
      A Vaughn index is simply a declaration or affidavit submitted in a FOIA case, so called
     after the case of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
     ORDER-8
     functioning of a democratic society, needed to check against corruption and to hold the
 1
     governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S.
 2

 3   214, 242 (1978). FOIA therefore “seeks to permit access to official information long

 4   shielded unnecessarily from public view and attempts to create a judicially enforceable
 5   public right to secure such information from possibly unwilling official hands.” Dep’t of
 6
     the Air Force v. Rose, 425 U.S. 352, 361 (1976) (quoting EPA v. Mink, 410 U.S. 73, 80
 7
     (1973)).   FOIA “is broadly conceived,” Mink, 410 U.S. at 80, and its “dominant
 8
     objective” is “disclosure, not secrecy,” U.S. Dep’t of Def. v. FLRA, 510 U.S. 487, 494
 9

10   (1994) (quoting Rose, 425 U.S. at 361).

11          An agency may withhold information responsive to a FOIA request only if the

12   information falls within an enumerated statutory exemption. 5 U.S.C. § 552(b). These
13   “exemptions are ‘explicitly exclusive,’” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S.
14
     136, 151 (1989) (quoting FAA Administrator v. Robertson, 422 U.S. 255, 262 (1975)),
15
     and “have been consistently given a narrow compass,” id. “The agency bears the burden
16
     of justifying any withholding, and the Court reviews the agency claims of exemption de
17

18   novo.” See Bigwood v. U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 74 (D.D.C. 2007)

19   (citing 5 U.S.C. § 552(a)(4)(B)).    Because the focus of FOIA is “information, not

20   documents . . . an agency cannot justify withholding an entire document simply by
21
     showing that it contains some exempt material.” Krikorian v. Dep’t of State, 984 F.2d
22
     461, 467 (D.C. Cir. 1993) (citation and internal quotation marks omitted). Instead, FOIA
23
     requires that federal agencies provide to a requester all non-exempt information that is
24
     “reasonably segregable” from, 5 U.S.C. § 552(b)—that is, not “inextricably intertwined
25



     ORDER-9
     with,” Mead Data Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir.
 1
     1977) (citations and internal quotation marks omitted)—exempt information.
 2

 3          b. Summary Judgment

 4          FOIA cases are typically and appropriately decided on motions for summary
 5   judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Defenders of Wildlife v.
 6
     U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Rushford v. Civiletti, 485 F.
 7
     Supp. 477, 481 n.13 (D.D.C. 1980). A motion for summary judgment should be granted
 8
     only “if the movant shows that there is no genuine dispute as to any material fact and the
 9

10   movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A material fact

11   is one that “might affect the outcome of the suit under the governing law.” Anderson v.

12   Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must support its factual
13   positions by “citing to particular parts of materials in the record, including depositions,
14
     documents, electronically stored information, affidavits or declarations, stipulations . . . ,
15
     admissions, interrogatory answers, or other materials.” FED. R. CIV. P. 56(c)(1)(A); see
16
     Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Factual assertions in the moving
17

18   party’s affidavits or declarations may be accepted as true unless the opposing party

19   submits its own affidavits, declarations, or documentary evidence to the contrary. Neal v.

20   Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
21
            In a FOIA case, an agency is entitled to summary judgment if it can demonstrate
22
     that there are no material facts in dispute as to the adequacy of its search for or
23
     production of responsive records. Nat’l Whistleblower Ctr. v. U.S. Dep’t of Health &
24
     Human Servs., 2012 WL 1026725, at *4 (D.D.C. Mar. 28, 2012). An agency must show
25
     that any responsive information it has withheld was either exempt from disclosure under

     ORDER-10
     one of the exemptions enumerated in 5 U.S.C. § 552(b), or else “inextricably intertwined
 1
     with” exempt information, Mead Data, 566 F.2d at 260 (citations and internal quotation
 2

 3   marks omitted). “Because FOIA challenges necessarily involve situations in which one

 4   party (the government) has sole access to the relevant information, and that same party
 5   bears the burden of justifying its disclosure decisions, the courts . . . require the
 6
     government to provide as detailed a description as possible—without, of course,
 7
     disclosing the privileged material itself—of the material it refuses to disclose.” Oglesby
 8
     v. U.S. Dep’t of Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996). This justification is typically
 9

10   contained in a declaration or affidavit, referred to as a Vaughn index after the case of

11   Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). An agency’s affidavits or declarations

12   are presumed to be submitted in good faith. See SafeCard Servs., Inc. v. S.E.C., 926 F.2d
13   1197, 1200 (D.C. Cir. 1991).
14
            There is no set formula for a Vaughn index, because “the critical elements of the
15
     Vaughn index lie in its function, and not in its form.” Kay v. FCC, 976 F. Supp. 23, 35
16
     (D.D.C. 1997). The purpose of a Vaughn index is “to permit adequate adversary testing
17

18   of the agency’s claimed right to an exemption,” Nat’l Treasury Emps. Union v. U.S.

19   Customs Service, 802 F.2d 525, 527 (D.C. Cir. 1986) (citing Mead Data Central, 566

20   F.2d at 251), and so the index must contain “an adequate description of the records” and
21
     “a plain statement of the exemptions relied upon to withhold each record,” Nat’l Treasury
22
     Emps. Union, id. at 527 n.9.
23
                                         III. ANALYSIS
24
            The FBI asserts that it has disclosed all responsive, non-exempt information to
25
     Ms. Clemente, and that, as such, it is entitled to judgment as a matter of law. First, it

     ORDER-11
     contends that its search for responsive documents was reasonable. Second, the Bureau
 1
     argues that it has only withheld information pursuant to an applicable FOIA exemption,
 2

 3   and that all segregable, non-exempt information has been released. The FBI asks the

 4   Court to grant summary judgment in its favor.
 5          Ms. Clemente, however, contends that the FBI’s search for documents responsive
 6
     to her FOIA request was inadequate, and that it has not met the burden of proof on its
 7
     exemption claims. She therefore asks the Court to order the Bureau to reprocess the
 8
     entire set of responsive documents. The Court addresses each of these arguments in turn.
 9

10              a. Adequacy of the FBI’s Search for Responsive Documents

11          Ms. Clemente first argues that the FBI has not conducted an adequate search for

12   responsive documents. She presses the Court to reconsider Judge Friedman’s ruling—
13   which he affirmed in denying her motion for reconsideration—that the FBI was not
14
     required to search its New York field office. Ms. Clemente challenges the reliance on
15
     Fischer v. U.S. Dep’t of Justice, 596 F. Supp. 2d 34 (D.D.C. 2009), and refers the Court
16
     instead to Campbell v. U.S. Dep’t of Justice, 164 F.3d 20 (D.C. Cir. 1998). But, as Judge
17

18   Friedman held in denying her motion for reconsideration [Dkt. # 61], “[n]othing in

19   Campbell suggests that the Court reached the wrong result on the adequacy-of-search

20   issue.” Campbell concerned a request submitted to an FBI field office in 1988; after an
21
     exchange of correspondence, the FBI produced documents from both its field and
22
     national offices. 164 F.3d at 26. To locate those records, the FBI searched its Central
23
     Records System index, but did not search either a separate electronic surveillance index
24
     nor for duplicate “tickler” files. The Campbell court ruled that the FBI was required to
25
     conduct those searches because in searching its Central Records System the Bureau had

     ORDER-12
     discovered information suggesting that such searches would be fruitful. Id. at 28–29.
 1
     Campbell did not address the question of whether the FBI would have been required to
 2

 3   search its New York office if the FOIA request had not been submitted there. Nor did the

 4   case concern a request brought under the current regulations which, as discussed below,
 5   require requests for documents held at FBI field offices to be submitted to those offices.
 6
            Subject to exceptions not relevant here, FOIA requests must be made “in
 7
     accordance with an agency’s ‘published rules stating the time, place, fees (if any), and
 8
     procedures to be followed. . . .’” Fischer, 596 F. Supp. 2d at 43 n.9 (quoting 5 U.S.C. §
 9

10   552(a)(3)(A)). Since 1998, the regulations governing requests for FBI files have required

11   that persons seeking “records held by a field office of the Federal Bureau of Investigation

12   (FBI) . . . must write directly to that FBI . . . field office address.” 28 C.F.R. § 16.3(a)
13   (2012) (language first introduced by Revision of Freedom of Information Act and Privacy
14
     Act Regulations, 63 Fed. Reg. 29,591, 25,594 (June 1, 1998)). This requirement has been
15
     recognized by the D.C. Circuit. Negley v. FBI, 169 Fed. Appx. 591, 592 (D.C. Cir. 2006)
16
     (per curiam); Piccolo v. Exec. Office for U.S. Attorneys, 93 Fed. Appx. 235, 236 (D.C.
17

18   Cir. 2004) (per curiam) (“Appellant next argues that the court should not have granted

19   summary judgment for the FBI concerning the adequacy of the search because the

20   Bureau searched only its headquarters, not its field offices. The scope of the search was
21
     appropriate, however, under 28 C.F.R. []§ 16.3(a) . . . .”). Judges in this district have
22
     repeatedly invoked it in rejecting the argument that Ms. Clemente makes here. See, e.g.,
23
     Wiesner v. FBI, 668 F. Supp. 2d 157, 161 (D.D.C. 2009); Servicemembers Legal Def.
24
     Network v. U.S. Dep’t of Def., 471 F. Supp. 2d 78, 85 (D.D.C. 2007); Ray v. FBI, 441 F.
25



     ORDER-13
     Supp. 2d 27, 32 (D.D.C. 2006); Hidalgo v. FBI, 2005 WL 6133690, at *1 n.2 (D.D.C.
 1
     Sept. 29, 2005); Maydak v. U.S. Dep’t of Justice, 254 F. Supp. 2d 23, 44 (D.D.C. 2003).
 2

 3          Ms. Clemente is of course free to submit a request to the FBI’s New York office,

 4   but that office was not required to respond to the request at issue here. The Court grants
 5   summary judgment in favor of the FBI on the adequacy-of-search issue and moves on to
 6
     consider the adequacy of the agency’s production.
 7
                b. Need for Reprocessing of Documents
 8
            Ms. Clemente goes on to argue that the FBI has withheld information that is
 9

10   neither exempt from disclosure under 5 U.S.C. § 552(b) nor “inextricably intertwined

11   with exempt portions.” Mead, 566 F.2d at 260 (citations and internal quotation marks

12   omitted). In support of its renewed motion for summary judgment, the FBI has submitted
13   a Vaughn index describing the redactions made from a sample of the responsive
14
     documents it has identified—192 pages out of a total of 1,153.
15
            “Representative sampling is an appropriate procedure to test an agency’s FOIA
16
     exemption claims when a large number of documents are involved.” Bonner v. U.S.
17

18   Dep’t of State, 928 F.2d 1148, 1151 (D.C. Cir. 1991); see also Meeropol v. Meese, 790

19   F.2d 942, 958 (D.C. Cir. 1986); Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1490

20   (D.C. Cir. 1984). “Representative sampling allows the court and the parties to reduce a
21
     voluminous FOIA exemption case to a manageable number of items that can be evaluated
22
     individually through a Vaughn index or in camera inspection. If the sample is well-
23
     chosen, a court can, with some confidence, ‘extrapolate its conclusions from the
24
     representative sample to the larger group of withheld materials.’” Bonner, 928 F.2d at
25



     ORDER-14
     1151 (D.C. Cir. 1991) (quoting Fensterwald v. CIA, 443 F. Supp. 667, 669 (D.D.C.
 1
     1977)).
 2

 3             When presented with a representative sample, a court considers the documents

 4   produced or described with the understanding that “[t]hey count not simply for
 5   themselves, but for presumably similar non-sample documents.”           Id. at 1152.   An
 6
     agency’s admission that information was improperly redacted from documents in the
 7
     representative sample may suggest that similar redacting errors could be found in the
 8
     non-sample documents. See id. at 1152–54; Meeropol, 790 F.2d at 959–60. If, however,
 9

10   the court reviewing the sample “uncovers no excisions or withholding improper when

11   made, then the agency’s action ordinarily should be upheld.” Bonner, 928 F.2d at 1153

12   (emphasis added). Neither “[t]he fact that some documents in a sample set become
13   releasable with the passage of time,” Bonner, 928 F.2d at 1153, nor “[t]he fact that there
14
     are documents which while properly withheld at the time the decision to withhold was
15
     made were nevertheless not exempt under new standards” indicates any error on the part
16
     of the agency, Meeropol, 790 F.2d at 959. See also Bonner, 928 F.2d at 1152 (“To
17

18   require an agency to adjust or modify its FOIA responses based on post-response

19   occurrences could create an endless cycle of judicially mandated reprocessing.”). The

20   Court therefore examines the Vaughn index of the representative sample in order to
21
     determine whether it suggests that the entire set of responsive documents was properly
22
     processed under the legal standards applicable at the time of the processing.
23
               Judge Friedman’s order held that the FBI could not withhold references to the
24
     number of FBI informants reporting on Mafia issues if those references were of “only
25
     historical significance,” Clemente, 741 F. Supp. 2d at 82–83, nor references to the

     ORDER-15
     dispensation of “operational funds,” id. at 83. This holding applied to the entire set of
 1
     responsive documents, but the FBI only released that information from the sample
 2

 3   documents that it reprocessed. After reprocessing those documents, the FBI released the

 4   sums dispensed as operational funds during law enforcement investigations from fifty-
 5   one documents in the sample. 4th Hardy Decl. ¶ 11 n.2. The Bureau released references
 6
     to the number of informants reporting on Mafia issues from eleven sample documents.
 7
     4th Hardy Decl. ¶ 11 n.3.       It has not released any information from non-sample
 8
     documents.
 9

10          The FBI made twenty-six additional disclosures from twenty-three documents in

11   the representative sample. It describes these disclosures as “discretionary releases.” 4th

12   Hardy Decl. ¶ 10. The “discretionary” disclosures included the names of fifteen deceased
13   individuals contained in twenty-one documents, as well as the names of Scarpa’s wife
14
     and eldest son, which the FBI determined to be part of the public record, a “technical
15
     source symbol number,” “information regarding [an] informant’s position within [the]
16
     organization and the resulting information provided by the informant,” each of which was
17

18   released from one sample document, and “identifying information regarding [a] payment

19   pick-up location,” which was released from two.        Id.   Although the FBI does not

20   explicitly concede that these documents were improperly withheld, it describes the
21
     releases as having been made “in response to this Court’s Memorandum Opinion of
22
     September 28, 2010,” Defs.’ Reply Br. [Dkt. # 63] at 2.
23
            Ms. Clemente argues that these excisions were “improper when made,” Bonner,
24
     928 F.2d at 1153, and that similar errors would therefore likely be found if the redactions
25
     made from the the non-sample documents were re-examined.                Her argument is

     ORDER-16
     persuasive. Redactions were removed in explicit response to Judge Friedman’s order
 1
     from 26.5% of the sample documents. The D.C. Circuit has said that an error rate of
 2

 3   even 25% is “unacceptably high.” Meeropol, 790 F.2d at 960.

 4          There is no merit to the FBI’s argument that Judge Friedman’s decision in this
 5   case was the sort of “post-response occurrence” that should not trigger “judicially
 6
     mandated reprocessing.” Bonner, 928 F.2d at 1152. The crucial question is whether the
 7
     redactions were proper under the standards applicable at the time those redactions were
 8
     made. See Bonner, 928 F.2d at 1153. Judge Friedman’s decision answered that question
 9

10   “No” with respect to historical references to the number of FBI informants reporting on

11   Mafia issues and to the dispensation of operational funds. Id. at 83. That information

12   must therefore be released from all responsive documents.
13          Judge Friedman also noted that the FBI had provided no evidence of any attempt
14
     to ascertain the life status of the individuals whose information it redacted on privacy
15
     grounds. Id. at 85. He further ordered the FBI to “supplement its Vaughn index with
16
     individualized and more detailed descriptions of the information not disclosed” pursuant
17

18   to Exemption 7(C) “[i]n each instance in which it is not clear that from context that

19   information [so] redacted . . . reveals a name or other basic identifying information,” id.

20   at 86 (mentioning, for example, pages 404, 418, 703, 744, 924, and 942 of the responsive
21
     documents). And he ordered the FBI to “provide evidence from which the Court can
22
     deduce something of the nature of the [investigative] techniques” that were redacted
23
     pursuant to Exemption 7(E). Id. at 88. Reviewing the current Vaughn index, the Court
24
     notes that the FBI has not said how it determined the life status of individuals named or
25
     identified in the sample documents.       (That it released the names of certain dead

     ORDER-17
     individuals does suggest that it made such a determination.)       There is, moreover, no
 1
     indication that the Bureau applied this method to determine the life status of individuals
 2

 3   identified in the non-sample documents. The FBI has not provided “individualized and

 4   more detailed descriptions” of the large portions of text redacted pursuant to Exemption
 5   7(C). Nor has it provided enough detail for the Court to determine whether the disclosure
 6
     of information redacted pursuant to Exemption 7(E) “could reasonably be expected to
 7
     risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). The Bureau should address
 8
     these deficiencies if it renews its motion for summary judgment.
 9

10                                     IV. CONCLUSION

11          Representative sampling in FOIA cases allows the Court to reach a conclusion

12   about the entire set of responsive documents through a careful examination of a subset of
13   those documents. Sampling works on the assumption that all documents have been
14
     handled in the same way, that the documents in a representative sample “count not
15
     simply for themselves, but for presumably similar non-sample documents.” Bonner, 928
16
     F.2d at 1152. That assumption has been frustrated here, because the FBI has released
17

18   certain types of information from the sample documents while withholding it from the

19   rest. The Court therefore orders the non-sample documents to be reprocessed so that all

20   non-exempt information can be released to Ms. Clemente.
21

22

23

24

25



     ORDER-18
            For the reasons stated above, the FBI’s motion for summary judgment is
 1
     GRANTED as to the adequacy of its search for documents and DENIED without
 2

 3   prejudice as to the remaining issues. Ms. Clemente’s cross-motion is DENIED without

 4   prejudice.
 5          SO ORDERED this 13th day of April 2012.
 6

 7
                                                            Barbara Jacobs Rothstein
 8                                                          United States District Judge
 9

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     ORDER-19
