Dent v. EOUSA, No. 12-0420 (EGS), 2013 WL 782625 (D.D.C. Mar. 2, 2013) (Sullivan, J.)

Saturday, March 2, 2013
Re: Request for records pertaining to plaintiff Disposition: Denying plaintiff's motion for summary judgment; granting in part and denying in part defendant's motion for summary judgment; denying defendant's motion to dismiss
  • Exhaustion: The court denies defendant's motion to dismiss because although "[n]othing in the record of this case indicates that plaintiff paid search fees in advance, . . . EOUSA appears to have processed the request. Under these circumstances, the EOUSA's exhaustion argument is of no moment."
  • Adequacy of Search: "The Court concludes that the FBI's search for records responsive to plaintiff's FOIA request was reasonably calculated to locate the information plaintiff seeks." "[P]laintiff's mere 'speculation as to the existence of additional records…does not render the search[] inadequate.'" The FBI searched its Central Records System (CRS), which contains "'administrative, applicant, criminal, personnel and other files complied for law enforcement purposes[,] . . . utilizing a four-way phonetic breakdown of the names." The search produced "'one responsive main [New York Field Office] file and four sub-files . . . that were processed for release to plaintiff.'"
  • Exemption 5/Deliberative Process Privilege: The court concludes that the defendant has not shown that the FBI properly withheld information under Exemption 5 and the deliberative process privilege. The FBI explains that it withheld an "unsigned draft complaint" and an "unsigned draft Federal Grand Jury Superseding Indictment." The court concludes that "[t]he declarant ably provides a description of the documents withheld but makes no effort to establish that the information withheld is either inter- or intra-agency, or that the information is predecisional and deliberative."
  • Exemption 7(C): The court grants the defendant's motion for summary judgment as to information withheld under Exemption 7(C). The court rejects the plaintiff's argument that Exemption 7(C) cannot apply because he was given government material during his trial and can identify and name individuals in certain statements. "The privacy interest at stake belongs to the individual, not the government agency." The court explains that "a third party may testify in open court and maintain an interest in his personal privacy." The individual "maintains an interest in his personal privacy even if the requester already knows, or is able to guess, his identity."
  • Exemption 7(D): The court grants the defendant's motion for summary judgment as to certain information withheld under Exemption 7(D). The court finds an implied assurance of confidentiality when "the records at issue were generated in the course of the 'criminal investigation of plaintiff . . . related to gang and drug activity, and murder' . . . and it is apparent that these sources were close enough to these activities to provide 'detailed and singular' information about them." The court also finds an express assurance of confidentiality where the words "PROTECT IDENTITY" appear in the document. The court explains, "these 'words are a positive indication of an express assurance of confidentiality,' and accepts the declarant's assertion that '[a]ll of the individuals would reasonably fear that disclosure of their identity [sic] would place them in danger.'" When addressing information pertaining to individuals subpoenaed to testify before a local grand jury, the court finds that the declaration is missing "any indication that the information withheld pertains to the identity of or information provided by a confidential source," and so the court cannot determine whether Exemption 7(D) applies.
  • Exemption 7(E): The court denies defendant's motion for summary judgment as to information withheld under Exemption 7(E). "'To convince the Court that the information withheld is subject to the exemption, the FBI cannot rely upon the vaguely worded categorical description it has provided,' and must instead 'provide evidence from which the Court can deduce something of the nature of the techniques in question.'"
Adequacy of Search
District Court
Exemption 5
Exemption 7C
Exemption 7D
Exemption 7E
Updated August 6, 2014