Canning v. DOJ, No. 01-2215, 2017 WL 2992475 (D.D.C. July 13, 2017) (Kessler, J.)

Canning v. DOJ, No. 01-2215, 2017 WL 2992475 (D.D.C. July 13, 2017) (Kessler, J.)

Re:  Request for records concerning conspiracy to kidnap

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 3:  The court relates that "[t]he FBI has withheld documents under Exemption 3 based on Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 ('Title III') and Rule 6(e) of the Federal Rules of Criminal Procedure."  Additionally, "[plaintiff] concedes that Rule 6(e) and Title III constitute statutes of exemption for the purposes of Exemption 3[.]"  "The Court [first] concludes that the FBI has appropriately asserted Exemption 3 over the Title III material."  Specifically regarding the contested information, information other than the content itself, the court finds that "requiring the government to release the identities, time and locations of targets might shed light on the content of the underlying communication, thereby defeating the very purpose of Title III's exemption provision."  "Nonetheless, the Court finds . . . [that] the FBI must disclose some of the withheld information because the government has already officially acknowledged it."  "[A] letter written by Assistant Attorney General Mueller, and disclosed by OIP, unambiguously indicates that [two individuals] were the subjects of the wiretaps."  Second, the court responds to plaintiff's "assum[ption] [that certain information withheld under Rule 6(e)] was previously disclosed" and "finds that "[t]o prevail on a public domain argument, the plaintiff, not the government, bears the burden of production to point to specific information in the public domain that appears to duplicate that being withheld."
   
• Exemption 7(C):  The court holds that "[plaintiff] has met his burden to identify specific documents in the public record that duplicate the material being withheld by the FBI."  "The Court therefore grants [plaintiff's] Motion for Partial Summary Judgment regarding the withholding of [certain] names . . . as subjects of the investigation and subscribers to the telephones that the FBI wiretapped."
   
• Exemption 7(D):  First, the court holds that "[plaintiff] has identified specific instances in which the FBI has disclosed to him, in the FOIA context, [a third party's] identity and role in the kidnapping investigation."  "Accordingly, the Court grants summary judgment in [plaintiff's] favor as it relates to the FBI's assertion of Exemption 7(D) to withhold information concerning [the third party's] role in the kidnapping investigation."  Second, "the Court concludes that an assurance of confidentiality between the FBI and its informants in the kidnapping case cannot be implied."  "Although an implied grant of confidentiality may at times be inferred from the nature of a criminal investigation, . . . the FBI has, in this case, done nothing more than assert that the Court should infer confidentiality just because the underlying case concerned a kidnapping conspiracy."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "[T]he Court finds that the FBI has adequately demonstrated that it has released all segregable material."  The court finds that "the FBI has provided a detailed Vaughn index and an affidavit asserting that each responsive document was reviewed for segregability."  "During the FBI's re-review of its FOIA releases, it re-considered each redaction and withholding to determine whether information previously withheld could be released."  "Where the factual justification for claiming an exemption appeared discretionary or marginal, the FBI erred on the side of disclosure."
   
• Litigation Considerations, Vaughn Index/Declaration:  The court "den[ies] [plaintiff's] Motion for Supplemental Vaughn Indices."  The court finds that "[plaintiff] overlooks the function of the sample Vaughn Index."  "A sample Index does not purport to contain every document the government chooses to withhold."  "Rather, as the FBI has underscored, the purpose is to allow the Court to extrapolate its conclusions from the representative sample to the larger group of withheld materials."  "The Vaughn Index in this case adequately fulfills that purpose."