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Boehm v. FBI, No. 09-2173 (ABJ), 2013 WL 2477091 (D.D.C. June 10, 2013) (Jackson, J.)

Re: Records pertaining to plaintiff Disposition: Granting in part and denying in part defendants' motion for summary judgment
  • Exhaustion of Administrative Remedies:  The court finds "that plaintiff is barred for failure to exhaust administrative remedies from challenging the FBI's decision on the subset of documents that originated from the FBI and were located at the FBI at the time of plaintiff's request."  "Plaintiff does not claim that he filed an administrative appeal of the FBI's decision."  "Since plaintiff did not object to the FBI's decision before the Office of Information Policy, the agency has not had a chance to reconsider its initial decision in light of his objections."  The court finds that "permitting plaintiff to obtain judicial review without exhausting his administrative remedies in this case would undermine the purpose for the exhaustion requirement:  '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.'"
  • Adequacy of the Search:  The court concludes that the defendants performed adequate searches.  The Criminal Division "searched its central index of records" and "used plaintiff's name as a search term, as well as the names of the co-defendants in his criminal case."  The Criminal Division also conducted searches in the three Offices where plaintiff believed there might be records.  The Executive Office for United States Attorneys (EOUSA) searched via the "LIONS" system, which can be used to "retrieve files pertaining to cases and investigations based on a defendant's name, the internal administrative number for the case, and the district court case number."  EOUSA also contacted the Office that prosecuted plaintiff to determine whether it maintained records regarding plaintiff.  The court explains that the agency affidavits "establish that the agencies searched the databases that were likely to turn up documents responsive to plaintiff's request using search terms that correspond to the scope of the requests."  Although plaintiff objects that the defendants "did not uncover all of the documents that he believes they should have," "plaintiff has presented no evidence that [defendants] did not perform their searches in good faith."
  • Vaughn Index & In Camera Review:  "[D]efendant's use of representative sampling complied with this Court's directions" and "[a]t no point did plaintiff oppose defendants' proposal to proceed via sampling."  Therefore, "the Court cannot find that the categorical nature of the indices is improper."  The court "finds defendants' Vaughn indices to be adequate — except as specifically indicated later in this Memorandum Opinion — and the Court need not conduct an in camera inspection of the documents." 
  • Exemption 3:  First, plaintiff "concedes defendants properly invoked Exemption 3 to withhold the names and identifying information of child victims and witnesses in plaintiff's prosecution pursuant to the Child Victims' and Child Witnesses' Rights Act,    18 U.S.C. § 3509(d), which statutorily prohibits disclosure of those types of information."  However, plaintiff argues that "there is no reasonable expectation that the identities of the testifying witnesses would remain secret," and that the withholding of that information under Exemption 3 and Rule 6(e) of the Federal Rules of Criminal Procedure was improper.  The court notes that plaintiff "cites no case law to support the theory that the public disclosure of any of this type of information makes 6(e) inapplicable, and he has submitted no evidence that any of this information has actually been made public."  The court agrees that "'when information is sufficiently widely known' it can lose its character as Rule 6(e) material," but plaintiff "has not supplied the Court with any evidence that the information being withheld was widely publicized or even disclosed to the public at all."  "The Court is satisfied that this information would tend to reveal the secret workings of the grand jury and has been appropriately withheld."  However, the court remands certain sets of documents for further processing and supplementation of the record because the agency descriptions lack sufficient detail.  As to the FBI's withholding of one representative document under Exemption 3 and Rule 6(e) of the Federal Rules of Criminal Procedure, the court concludes that the "description is not detailed enough for the Court to determine whether disclosure of the particular record would reveal some secret aspect of the grand jury's investigation or whether the information was simply peripheral to the grand jury investigation."  Also, the declaration from EOUSA explains that it "may not have even processed some documents that might have been responsive to plaintiff's request if they were found to be 'related to the grand jury.'"  The court finds that, "Rule 6(e) is not so broad" and "EOUSA has not provided a sufficient factual basis — or legal support — for its position that these materials are categorically exempt from not only disclosure but any FOIA processing."
  • Exemption 5:  The court rejects plaintiff's argument that the defendants may not withhold exculpatory or Brady material under Exemption 5 because "there is case law from this circuit that expressly negates that theory."  Additionally, the court disagrees with plaintiff's assertion that the Vaughn indices are not sufficiently detailed and that defendants have not released all segregable information.  The court finds that the Vaughn indices coupled with the declarations "give detailed descriptions of the information that has been withheld, and reveal that the agencies released segregable information."  "Since plaintiff offers no evidence that the descriptions in the declarations are false, the Court finds them to be sufficient," and upholds defendants' Exemption 5 withholdings.
  • Exemption 7(C):  "Plaintiff concedes that the exemption applies to identifying information about child victims and witnesses," but "argues that there is no privacy interest in the identities of the local law enforcement officers who have appeared in the press concerning his criminal case."  The court explains,"[i]t is well established that Exemption 7(C) protects the identities of local law enforcement officers."  Additionally, "while there is some support for the notion that a private citizen waives her privacy interest in information when she voluntarily brings that information into the public domain, . . . plaintiff has not met his burden of showing that has occurred here." Plaintiff argues that there is a public interest in government wrongdoing, but "the portions of the report plaintiff provides [as evidence of wrongdoing] do not reveal any misconduct in his own criminal case."  Plaintiff also argues that the withholdings raise "Sixth Amendment concerns because 'who these individuals were and who they spoke with is relevant to the determination of whether evidence was properly compiled and disclosed in his case.'"  However, the court explains that, "disclosure in a FOIA case is governed by different standards than disclosure in a criminal case."  "The only factors relevant to the Exemption 7(C) analysis are the privacy interest and the public interest in disclosure."  "Because plaintiff has failed to identify any public interest that would overcome the privacy interest protected by Exemption 7(C), the Court concludes that defendants' withholdings were proper."
  • Exemption 7(D):  The court remands certain documents to EOUSA for supplementation and concludes that the withholdings made by the FBI under Exemption 7(D) should be affirmed.  While EOUSA states that certain information was "determined to have been provided under an express assurance of confidentiality, the declaration does not indicate what markings or labels on the documents lead the EOUSA to that conclusion."  As to the information "determined to have been provided under an implied assurance of confidentiality, the declaration does not explain whether the information concerned drug trafficking, or whether there was some other reason why the EOUSA concluded that . . . an assurance of confidentiality had been implied."   The information withheld by the FBI under an express assurance of confidentiality is "demarcated with designations of 'Protected Identify [sic],' 'Cooperating Witness,' or 'Cooperating Source.'"  The information withheld by the FBI under an implied assurance of confidentiality was provided by individuals "'reporting on distribution of cocaine to individuals under the age of 18, often for purposes of sexual gratification.'"  The FBI's declaration states "the only information that has been withheld is the individual's name and the information that the individual provided, but only to the extent that the information would identify the individual."  The declaration "provides a rationale for protecting the information so that the protected individuals will not be subject to reprisal and so that it does not dissuade others from reporting information in the future."  The court further notes that "plaintiff provides no evidence that any informants in his case. . . identified themselves in a way that would waive the protection of Exemption 7(D).  "[T]he FBI has demonstrated that withholding the information is proper." 
  • Exemption 7(E):  The court finds that the FBI properly withheld three types of information under Exemption 7(E).  First, "documents showing methods of data collection, organization and presentation contained in ChoicePoint reports and discussion of ChoicePoint records" were properly withheld because "the manner in which the data is searched, organized and reported to the FBI is an internal technique that is not known to the public."  Next, the FBI properly withheld information in "form FD-515 FBI Accomplishment Reports" because "disclosure of the special investigative assistance or techniques used in this case might reasonably create a risk of circumvention of those techniques."   Finally, the FBI properly withheld an "FBI/Police Operational Plan and information pertaining to the techniques used to facilitate the activity of a source" because "if criminals were alerted to this information, they would be able to alter their behavior in ways that would diminish the ability of law enforcement to rely on this type of information."
  • Exemption 7(F):  The court finds that "the EOUSA has established that disclosure of the withheld information — identifying information about informants and individuals who work for the government — could reasonably be expected to endanger the safety of those individuals by making them available to un-detained participants in the cocaine trafficking and sexual exploitation activities that were the focus of the investigation into plaintiff."  However, the court finds Exemption 7(F) "inapplicable" to a law enforcement interview with plaintiff."  "[T]he only individual that the FBI is seeking to protect is plaintiff," and "plaintiff has waived any concern for his own safety." 
Court Decision Topic(s)
Litigation Considerations, Adequacy of Search
District Court opinions
Exemption 3
Exemption 5
Exemption 7(C)
Exemption 7(D)
Exemption 7(E)
Exemption 7(F)
Litigation Considerations, Exhaustion of Administrative Remedies
Litigation Considerations, In Camera Inspection
Updated August 6, 2014