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Hodge v. FBI, No. 11-5089, 2013 WL 45863 (D.C. Cir. Jan. 4, 2013) (Kavanaugh, J.)

Friday, January 4, 2013
Re: First party request for records concerning the investigation of the murders for which appellant was convicted Disposition: Affirming the judgment of the district court in favor of the FBI
  • Adequacy of Search: The court rejects appellant's complaints about the adequacy of the FBI's searches. The court notes that "because the sworn declarations from the FBI indicate that it conducted 'reasonably calculated' searches, the burden is on [appellant] to identify specific additional places the agency should now search." Noting that appellant "has not identified any specific additional searches that he believes the FBI should have conducted" and that appellant "offers no basis for concluding that [additional] documents might exist," the court rejects appellant's assertions with regard to the search.
  • Exemption 3: The court upholds the FBI's use of Exemption 3 to withhold material related to grand jury proceedings. The court notes that FBI has argued and appellant does not contest "that the relevant material 'documents the identities of individuals who were either the recipients of a Federal Grand Jury Subpoena and/or testified before a Federal Grand Jury." Noting that this "explanation shows that the material is covered by [Federal Rule of Criminal Procedure] 6(e)," the court affirms its use.
  • Exemption 7(C): The court upholds the FBI's use of Exemption 7(C) to protect the "private information of various investigators, witnesses, informants, and suspects." The court rejects appellant's argument "that there is a public interest in disclosure of this material because it could reveal government misconduct." The court comments that "a requester 'must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred," and upholds the use of Exemption 7(C) because appellant "has not offered such evidence."
  • Exemption 7(D): The court affirms the FBI's use of Exemption 7(D). The court finds that Exemption 7(D)'s requirement has been satisfied for two witnesses because "the FBI explained in a sworn declaration referencing witness interview documents marked 'protect' or 'protect identity' that two of the witnesses at issue were expressly promised confidentiality." For the remaining witnesses, the court finds that there is implied confidentiality. The court concludes that "[g]iven the vicious nature of the crimes and the explanation offered in the FBI's affidavits . . . the witnesses who provided the relevant information about [appellant's] involvement in the murders would have expected that their identities remain confidential."
  • In camera review: The court rejects appellant's argument that the district court should have conducted an in camera review to review the exempted material. The court states that "case law has rejected the argument that district courts are required to conduct in camera review in FOIA cases."
  • Segregability: Likewise, the court rejects appellant's argument that all segregable material was not released. Appellant points to documents released to him a second time but with fewer redactions as evidence of this. The court disagrees, noting that "[a]s is the case with searches, what matters is that, in the end [appellant] received the material to which he was entitled and has not shown a basis to question the remaining redactions." Appellant "has not presented sufficient evidence to rebut" the presumption that the FBI "'complied with the obligation to disclose reasonably segregable material.'"
Adequacy of Search
Court of Appeals
Exemption 3
Exemption 7C
Exemption 7D
In Camera Review
Updated August 6, 2014