Matthews v. FBI, No. 15-569, 2019 U.S. Dist. LEXIS 54808 (D.D.C. Mar. 31, 2019) (Moss, J.)

Matthews v. FBI, No. 15-569, 2019 U.S. Dist. LEXIS 54808 (D.D.C. Mar. 31, 2019) (Moss, J.)

Re:  Request for records concerning plaintiff

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

• Litigation Considerations:  "Given that [plaintiff] requested records about himself, the Court concludes that the FBI's search of its [Central Records System], using three variations of [plaintiff's] name, is reasonably calibrated to locate all responsive records."
   
• Exemption 3:  "[T]he Court concludes that the FBI properly invoked Exemption 3."  The court explains that "the identities of those served with Federal Grand Jury subpoenas, the records subpoenaed, and 'other information on the internal workings of the Federal Grand Jury,' . . . clearly disclose 'matters occurring before the grand jury . . . .'"
   
• Exemption 5, Deliberative Process Privilege:  "The Court . . . holds that the FBI lawfully withheld the draft ex parte application and draft plea agreement pursuant to the deliberative process privilege."  The court finds that "the FBI reasonably concluded that the two documents 'were prepared in the context of agency employees' and inter-agency deliberations;' that 'they consist of preliminary opinions, evaluations and comments of FBI staff and U.S. Attorney staff;' and that the 'release of these exempted materials would chill the full and frank discussion between agency personnel and/or other agency personnel regarding agency decisions.'"
   
• Exemption 5, Attorney Work-Product:  The court finds "sufficient" the FBI's explanation for withholding "'two other pages . . . [that] describe the FBI's actions after receiving [plaintiff's] administrative tort claim.'"  "'[B]oth [of these] documents are administrative pages showing the FBI attorneys' behind-the-scenes work and analytical process, in reasonable anticipation of litigation over [plaintiff's] tort claims.'"
   
• Exemption 5, Attorney-Client Privilege:  Regarding an "'inter-agency letter from DOJ attorneys to FBI attorneys,'" the court relates that, "[r]egardless which agency is viewed as counsel and which is viewed as the client, [defendant] testifies that the letter 'is a confidential communication . . . seeking legal advice and providing legal analysis.'"  The court finds that "[t]hat is sufficient to demonstrate that the FBI properly invoked attorney-client privilege."
   
• Exemptions 6 & 7(C):  "As a threshold matter, the Court agrees that '[plaintiff's] investigative main file' was compiled for a specific law enforcement purpose."  "Because [plaintiff] makes no allegation that disclosure of the private individuals' information is necessary, and because [defendant] attests that the FBI personnel and other agency staff could face retaliation and adverse publicity, . . . the Court concludes that the agency properly invoked Exemption 7(C) to withhold the names and identifying information of all individuals mentioned in [defendant's] declaration to the extent those documents were found in [plaintiff's] main investigative file."  " The responsive records, however, also include [plaintiff's] '197 file,' which is not an 'investigative file'" and "[b]y [defendant's] own admission, . . . does not contain 'investigative files[.]'"  "Although [defendant's] declaration spells out the harms each category of individuals could suffer if their identities were disclosed, it does not offer any details about which categories of individuals appeared in the 197 file, or the types of records from which the names and identifying information were redacted."  "Absent this basic information, the Court cannot ascertain whether the release of these names and identifying information would compromise a 'substantial' privacy interest."
   
• Exemption 7(D):  "[T]he Court concludes that [defendant's] declaration 'support[s] the inference of confidentiality,' . . . with respect to the informant who agreed to provide an informal proffer."  "The crimes at issue included bank fraud and wire fraud."  "On the present record, however, the Court cannot conclude that the FBI's invocation of Exemption 7(D) was proper with respect to the other seven informants."  "[The FBI's statement] is not enough to show that each of these seven sources operated under an implied understanding of confidentiality absent evidence that all of the sources were similarly situated."  Finally, "[t]he Court . . . concludes that the FBI properly redacted the confidential sources numbers of . . . two [other] cooperating witnesses."
   
• Exemption 7(E):  "In light of [defendant's] detailed declaration, and [plaintiff's] failure to dispute any of the factual assertions on which [defendant] premised his conclusions, the Court finds that (1) each of the withholdings at issue was generated during the agency's investigation of Matthews and thus constitutes a law enforcement record, and (2) the FBI has logically connected each of its withholdings to a reasonable expectation of risk that the law might be circumvented if the information were disclosed."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "[T]he Court is satisfied that the agency has produced all segregable, non-exempt records with respect to the 671 pages that it has processed."  The court notes that defendant relates that "no information could be reasonably segregated for release."  "Any further segregation of this intertwined material would employ finite resources only to produce disjointed words, phrases, or sentences, that taken separately or together, would have minimal or no informational content."
• ​​​​​​​Litigation Considerations:  "[B]ecause the FBI has failed to substantiate – on the particular facts of this case – that the enforcement of [plaintiff's] FOIA waiver would further a legitimate criminal justice interest that outweighs [plaintiff's] interest in accessing records related to his prosecution, the Court concludes that the agency is not entitled to withhold those documents on the basis of [plaintiff's] FOIA waiver."  The court rejects all of defendant's public interest propositions including "(1) 'the finality of [the plea] agreement in which [plaintiff] voluntar[ily] acknowledged that his "attorney [had] rendered effective service,"' . . . (2) the need to prevent a backlog of FOIA litigation in federal courts, . . . and (3) the interest in preventing a drain on the FBI's resources through onerous or duplicative production."