Alper v. DOJ, No. 24-1837, 2025 WL 1503795 (D.D.C. May 27, 2025) (Friedrich, J.)

Alper v. DOJ, No. 24-1837, 2025 WL 1503795 (D.D.C. May 27, 2025) (Friedrich, J.)

Re:  Request for records concerning plaintiff’s client

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment

• Exemption 7, Threshold:  The court notes that “[plaintiff] concedes that these records were compiled for law enforcement purposes.”
   
• Exemption 7(A):  The court relates that “[t]he FBI points to two pending enforcement proceedings – [plaintiff’s client’s] habeas petition in federal court and his petition for postconviction relief in state court – and the reasonably anticipated possibility of a new criminal trial in Alabama, should either pending petition be granted.”  “[Plaintiff] points out that the State of Alabama, not the FBI, is responsible for defending [plaintiff’s client’s] conviction in these proceedings.” “But [the court finds that] the D.C. Circuit has repeatedly affirmed that enforcement proceedings are not limited to federal proceedings or the enforcement of federal law.”  “Habeas proceedings ‘complicate[ ] the typical Exemption 7(A) concerns’ because they are often brought long after the case concludes and after the government has already had the opportunity to present its case in court.”  “But here, [plaintiff’s client] challenges his actual conviction in federal and state courts, so the government must ‘defend [the State’s] prosecution and [plaintiff’s client’s] convictions.’”  “And should relief be granted, it is reasonably likely that [plaintiff’s client] would receive a new trial.”  However, “[o]n the existing record, the Court cannot conclude that the FBI has met its burden to explain how disclosure will harm the government’s case.” “For one, [plaintiff] has identified particular FBI documents that [plaintiff’s client] defense team already possesses.”  “Given the similarity between those records and the descriptions of withheld documents in the Vaughn index – specifically, communications with a foreign agency requesting assistance in interviewing a witness  - [plaintiff] has adequately demonstrated that the previously-disclosed records ‘match’ certain withheld records.”  “Because the FBI has not explained ‘how its investigation will be impaired by the release of information that the targets of the investigation already possess,’ it has not properly invoked Exemption 7(A).”  “The Court also is not persuaded that disclosure would genuinely interfere with future proceedings.”  “This case is 30 years old, and the State has already had the opportunity to present its case without interference.”  “Generalized concerns about the potential for witness tampering, evidence destruction, and the thwarting of the government’s trial strategy . . . are not as compelling when the witnesses have already been disclosed, the evidence is decades old, and the government has revealed its evidence and strategy in an earlier trial.”  “The government is directed to disclose all documents that match those that [plaintiff] has already identified as previously disclosed.”  “In addition, the government must reevaluate all other records to determine whether they actually pose a risk of interference with enforcement proceedings.”  “Should the government continue to withhold material under this exemption, it must justify any withholding with a supplemental declaration.”
   
• Exemption 6; Exemption 7(C):  “[T]he Court concludes that the FBI’s withholding under Exemption 7(C) is proper, subject to the Court’s segregability analysis.”  “First, the FBI protects the names and identifying information of FBI special agents and other FBI professional staff.”  “These individuals have a substantial privacy interest ‘in not being associated unwarrantedly with alleged criminal activity.’” “Courts in this circuit routinely protect the names of both FBI special agents and professional employees.”  “The FBI also seeks to withhold the names and identifying information of third parties who provided information, who were merely mentioned in the investigative records, who were of investigative interest, and those with criminal records.”  “Exemption 7(C) ‘affords broad[ ] privacy rights to suspects, witnesses, and investigators.’”  “Finally, the FBI seeks to withhold the names and identifying information of personnel from other federal agencies and from local and foreign law enforcement.”  “Although the privacy interests of government employees may not be as high as private third parties, they still have significant interests in not being named in connection with criminal proceedings.”  “[Plaintiff] responds that any purported privacy interests have been undermined because it is likely that many of these documents with unredacted names have already been disclosed.”  “[Plaintiff] further points out that some individuals also testified at [plaintiff’s client’s] trial and were discussed extensively in newspaper articles during the trial period.”  “But testimony at trial does not waive privacy interests.”  “And courts have consistently allowed withholding under this exemption even when the information might already have been made available through other sources.”  “On the current record, the Court cannot conclude that any public interest outweighs the individuals’ privacy interests.”
   
• Exemption 7(D):  The court relates that, “[h]ere, the FBI withheld information related to ‘how the foreign government agency gleaned specific information, and the results of the inquiries with their own country.’”  “The Court acknowledges the likelihood that the FBI’s involvement with a foreign agency implicates privacy and cooperation interests.”  “Even so, the government has not demonstrated through its declaration that revealing the agency’s foreign assistance would degrade trust and reduce cooperation in the future.”  “The cooperative efforts concluded approximately thirty years ago, and from what the Court can glean, that cooperation was limited to interviewing one witness who happened to temporarily be in the foreign country.” “The foreign agency’s ‘relation to the crime’ was therefore distant, and the FBI has not proffered other conditions that would support an inference of confidentiality.”  “The Court thus will deny summary judgment to both parties on Exemption 7(D) and allow the government to supplement the record to provide sufficient details to conclude that the witness ‘spoke with an understanding that the communication would remain confidential.’”
   
• Exemption 7(E):  The court relates that “[t]he majority of the documents withheld under 7(E) contain ‘non-public information within a request for assistance [the FBI] made to a foreign law enforcement agency.’”  “But the Vaughn Index describes these documents as communications from the DOJ to an FBI special agent providing legal guidance.”  “And the FBI does not invoke this exemption for the documents labeled in the Vaughn Index as documents ‘requesting assistance from a foreign law enforcement agency.’”  “In sum, the Court is not able to conclude that the FBI properly invoked the exemption to withhold the identified documents.”  “Regarding [a] database checklist, courts have allowed invocation of 7(E) for FBI databases in the past, considering the low bar for this exemption.”  “The FBI seeks to protect ‘the identities of investigative databases,’ . . . and the declaration provides a ‘logical explanation,’ . . . for why exposing these sensitive databases would risk circumvention of the law by revealing ‘the nature of their utility to FBI investigators and the scope of information stored,’ . . . .”  “This satisfies the low bar for withholding under Exemption 7(E).”
   
• Exemption 5, Attorney-Client Privilege:  The court relates that “[t]he FBI invoked the attorney-client privilege to withhold five communications between DOJ counsel and an FBI special agent regarding legal guidance.”  “Because these documents constitute legal advice for the agency from an agency lawyer, the FBI properly withheld them under Exemption 5 and the attorney-client privilege.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court holds that, “[h]ere, the FBI withheld all responsive pages in full under Exemption 7(A) and determined that some records or portions of those records also required withholding under other exemptions.”  “Because the Court has rejected the FBI’s withholding under Exemption 7(A), the Court cannot conclude that the agency released all reasonably segregable non-exempt portions of the documents.”  “The FBI must conduct another line-by-line review of the withheld information to ensure that it has released all reasonably segregable non-exempt information, consistent with this Memorandum Opinion.”