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Kowal v. DOJ, No. 18-938, 2021 WL 3363445 (D.D.C. Aug. 3, 2021) (Kelly, J.)


Kowal v. DOJ, No. 18-938, 2021 WL 3363445 (D.D.C. Aug. 3, 2021) (Kelly, J.)

Re:  Request for records concerning capital defendant that Federal Defender represents in his post-conviction hearings, as well as several of his co-defendants

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

  • Litigation Considerations, Vaughn Index/Declaration:  "Previously, the Court noted that the DEA's Vaughn indices claimed exemptions for each document, but did not adequately 'correlat[e] those claims with the particular part of a withheld document to which they apply.'"  "And the indices did not provide enough specificity as to why exemptions applied to certain documents."  "The DEA's revised indices remedy these problems."  "The Vaughn indices specify which exemptions are being [applied] to which portions of a document, and what information is being redacted."  "At times that information is described quite generally, relying on language that Kowal describes as 'boilerplate.'"  "But it is unclear to the Court what further detail the DEA could provide without revealing the exempted content."  "And in looking at the DEA's Vaughn indices alongside its declaration, the nature of the redacted material is clear."  "Ultimately, the DEA's revised Vaughn indices adequately enable the Court to review the agency's withholdings."
  • Exemptions 6 & 7(C) & Waiver and Discretionary Disclosure, Waiver:  The court holds that "[plaintiff] has not shown that the material withheld by the DEA is in the public domain, and since the DEA justified its reliance on Exemptions 6 and 7(C), it may withhold that material."  The court first notes that "the records at issue were compiled for law enforcement purposes, the Court need only consider whether the DEA properly invoked Exemption 7(C)."  The court then relates that "Defendants argue they invoked Exemption 7(C) to protect third parties, 'such as law enforcement personnel, witnesses, suspects, co-defendants and confidential sources of information,' from 'possible harassment' or becoming the focus of 'derogatory inferences and suspicion.'"  "Defendants also say they invoked Exemptions 6 and 7(C) together 'to protect the names and other identifying information that would reveal the identity of and disclose the personal information about individuals who were involved in law enforcement investigations.'"  "The DEA weighed the public interest in knowledge of 'DEA's performance of its mission to enforce Federal criminal statutes and the Act, or how DEA conducts its internal operations and investigations' against the privacy interest of these individuals."  "Since [plaintiff] does not point to any illegal activity implicating the DEA or its redactions under Exemptions 6 and 7(C), the Court cannot find fault with the balance the DEA struck."

    Additionally, the court finds that "[plaintiff] has not met her burden of showing that the 'public domain' doctrine diminishes the privacy interests at stake here."  "She attaches long trial transcripts, without pinpoint citations, to purportedly show that the identities of witnesses who testified at trial are 'unquestionably already a matter of public record.'"  "But she does not link up 'specific' trial documents that are 'identical' to those withheld or redacted by the DEA."  "While perhaps the identities of some individuals involved in the investigation were revealed at trial, [plaintiff] does not meet her burden to show that the identical documents and information that DEA seeks to withhold here were made public then."  "Further, '[e]ven if [plaintiff] already knows the identities of trial witnesses, the [DEA'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.'"
  • Exemption 7(D):  The court relates that "DEA explains that the sources 'were involved, and maintained a close relationship with, several individuals who trafficked in and engaged in other drug-dealing and illegal activity' and that the information they provided related to the trafficking."  "And Courts often find that confidentiality is implied in illicit drug trade investigations because violent reprisal is so common."  "Because of the nature of the investigation, the Court can infer an assurance of confidentiality."  "Thus, the DEA properly invoked exemption 7(D)."  Additionally, the court finds that "DEA properly withheld information provided by confidential sources, even though those sources testified at [the subject's] trial."
  • Exemption 7(E):  The court relates that "Defendants invoked Exemption 7(E) to withhold 'Geo-Drug Enforcement Program (G-DEP) identifiers,' 'Narcotics and Dangerous Drugs Information System (NADDIS) numbers,' and DEA file numbers."  "The DEA claims that if this information were released, '[s]uspects could decode this information and, as a result, change their patterns of drug trafficking' and 'develop enforcement countermeasures, avoid detection and apprehension, create excuses for suspected activities, and/or create alibis for suspected activities.'"  "This information is routinely withheld."  "And the DEA's explanations as to how this information could be used to circumvent the law satisfies their burden . . . ."  Separately, the court relates that "Defendants also invoke 7(E) to withhold 'material that would reveal sensitive, non-public references to the DEA's Agents' Manual' and 'certain information that would reveal sensitive, non-public references to the DEA's Agents' Manual.'"  "Because of the brevity and vagueness of these statements, the Court is unable to determine whether such references truly risk revealing techniques unknown to the public."  "More specifically, it is unclear what law enforcement procedures are at stake and how references to the DEA Agents' Manual might disclose those procedures."  "'Although Exemption 7(E) sets a "low bar for the agency to justify withholding," the agency must at least provide some explanation of what procedures are involved and how they would be disclosed.'"  "The DEA has not provided sufficient detail for the Court to determine whether such records were properly withheld under 7(E)."
  • Litigation Considerations, "Reasonably Segregable" Requirements:  "Upon review of the relevant Vaughn index and [defendant's] Declaration, the Court is satisfied that Defendants have shown that no portion of the documents withheld in full is reasonably segregable and therefore must be disclosed."
Court Decision Topic(s)
District Court opinions
Exemption 6
Exemption 7(C)
Exemption 7(D)
Exemption 7(E)
Litigation Considerations, Vaughn Index/Declarations
Litigation Considerations, “Reasonably Segregable” Requirements
Waiver and Discretionary Disclosure
Updated August 31, 2021