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Kowal v. DOJ, No. 18-2798, 2020 WL 5702420 (D.D.C. Sept. 24, 2020) (Kelly, J.)


Kowal v. DOJ, No. 18-2798, 2020 WL 5702420 (D.D.C. Sept. 24, 2020) (Kelly, J.)

Re:  Request for records concerning capital defendant represented by Federal Defender in his post-conviction hearings

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; denying in part plaintiff's motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  "[T]he Court finds that both [the FBI and ATF] conducted adequate searches."  Regarding the FBI, the court finds that "[g]iven that [plaintiff's] request was for documents 'pertaining to any investigation, arrest, indictment, conviction, sentencing, incarceration, and/or parole of' [plaintiff's client] . . . those documents would all likely be housed in the [Central Records System ("CRS")] . . . ."  "And the FBI has asserted that its search of the CRS was reasonably calculated to return all responsive records, even with its index search methodology, because the CRS indexes information about individuals such as [plaintiff's client] specifically for the purpose of future retrieval."  Responding to plaintiff's objections, the court finds that "the FBI's decision to not use its [Electronic Case File ("ECF")] . . . database does not render its search inadequate" because it searched the location "reasonably be expected to produce the requested records."  Additionally, the court finds that "[plaintiff's] wish for the FBI to have used more search terms does not make the search itself inadequate, and she has no right to dictate the FBI's scope of its search."

    Regarding ATF, the court finds that "ATF has . . . shown that it 'made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'"  Responding to plaintiff's objections, the court finds that "[t]he absence of [one] search term does not undermine the reasonableness of the ATF's search, particularly when considering that the ATF was able to quickly locate its investigative file on [the subject] and retrieved the file with 'agents knowledgeable of the case.'"  "[An agency] is not required to use the search terms proposed in a FOIA request."  Additionally, the court finds that "[s]ince 'the adequacy of a FOIA search is not judged on results, but rather on the good faith search itself,' the missing items themselves do not show that the search was inadequate."
  • Litigation Considerations, Vaughn Index/Declaration:  The court holds that "[plaintiff] is correct that some entries in the FBI's Vaughn index do not 'provide enough information to reasonably discern why some pages of a document were withheld, while others were released with redactions' and 'are either incomplete or so vague as to make it impossible to discern why the claimed exemption is justified.'"  Specifically, "[t]he Court does not take issue with the FBI's use of a coded system, but rather with the difficulty of understanding how the codes apply to the documents in its Vaughn index, when the redacted pages are not in the record, and the index itself does not provide document descriptions for redacted pages."  "Because the Court cannot determine whether the FBI has properly invoked its asserted FOIA exemptions, it will be provided the opportunity to submit a revised Vaughn index, and, if necessary, to submit redacted versions of the documents withheld in full or in part that help explain which portions of the documents have been withheld under which exemptions, and the factual basis for each portion of the documents withheld."

    However, the court holds that "ATF's Vaughn index adequately enables the Court to review the agency's withholding."  The court finds that "ATF's 'index tie[s] each individual document to one or more exemptions, and the [ATF's] declaration link[s] the substance of each exemption to the documents' common elements.'"
  • Exemptions 6 & 7(C):  "Because [plaintiff] does not dispute that the requested records about [plaintiff's client's] criminal prosecution are law enforcement files subject to review under Exemption 7(C), the Court will proceed to evaluating the propriety of the ATF's redactions by balancing “the privacy interests involved against the public interest in disclosure.'"  The court holds that "Exemption 7(C) 'affords broad[] privacy rights to suspects, witnesses, and investigators.'"  "And the public interest in that information is 'not just less substantial, it is insubstantial,' . . . unless there is 'compelling evidence that the agency denying the FOIA request is engaged in illegal activity' and 'access to the names of private individuals appearing in the agency's law enforcement files' is necessary to confirm or refute that evidence . . . ."  "Since [plaintiff] does not point to any illegal activity implicating the ATF's redactions under Exemptions 6 and 7(C) of names, addresses, and other identifiers of suspects, witnesses, and investigators mentioned in investigatory files, the Court cannot find fault with the balance struck by the ATF."  Regarding plaintiff's waiver argument, the court finds that "[plaintiff] does not identify the 'specific' trial documents that are 'identical' to those the ATF is withholding, . . . nor does she specify any information in the public domain about this DEA agent and confidential source, beyond their names."  "Further, '[e]ven if [plaintiff] already knows the identities of trial witnesses, the [ATF's] decision to withhold their names and other identifying information under Exemption 7(C) is justified' because '[a] witness does not waive his or her interest in personal privacy by testifying at a public trial.'"
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "ATF has thus shown with 'reasonable specificity' as to why the 30 documents cannot be segregated."  The court relates that "ATF's declaration explains that it applied redactions to documents when it could do so 'in such a way as to carefully protect information that either by itself, or if read in combination with other public information, could result in the disclosure of the identities of non-law enforcement third parties contained within ATF investigation records,' and confirms that '[a]ll meaningful segregable information has been disclosed to Plaintiff.'"
Court Decision Topic(s)
District Court opinions
Exemption 6
Exemption 7(C)
Litigation Considerations, Adequacy of Search
Litigation Considerations, Vaughn Index/Declarations
Litigation Considerations, “Reasonably Segregable” Requirements
Updated October 27, 2020