Matthews v. FBI, No. 15-569, 2021 WL 5865451 (D.D.C. Dec. 9, 2021) (Moss, J.)

Matthews v. FBI, No. 15-569, 2021 WL 5865451 (D.D.C. Dec. 9, 2021) (Moss, J.)

Re:  Request for records concerning plaintiff

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

• Exemptions 6 & 7(C):  The court relates that "[i]nvoking [these] exemptions, the FBI seeks to withhold (1) the names and identifying information of FBI support personnel who handled ministerial tasks associated with the investigation of [plaintiff's] [Federal Tort Claims Act] claims; (2) the names and telephone numbers of the AUSA assigned to [plaintiff's] criminal prosecution and of a Probation Office employee; and (3) the full victim impact statement associated with [plaintiff's] criminal prosecution in the Eastern District of Virginia."  "With respect to the FBI's 'redaction of the identities of support personnel who perform[ed] clerical or administrative duties,' . . . the Court concludes that the FBI has now provided the necessary detail to justify its withholdings."  "The dangers [defendant] describes are more than 'de minimis,' . . . – instead, they represent 'the very real risks of adverse publicity, harassment, or revenge' that would arise if support personnel's identities are disclosed."  "Given that FBI support personnel may, among other things, 'become targets of harassing inquiries . . . if their identities [ar]e released,' the Court is persuaded that the support personnel possess 'substantial privacy interests' in their identifying information."  [Plaintiff], in turn, identifies no countervailing 'public interest' that might weigh in favor of disclosure."  "The FBI's remaining withholdings under Exemptions 6 and 7(C), however, are less clearly supported on the present record."  "These withholdings include 'the names and phone numbers of an AUSA and employee from the parole office who were communicating regarding [plaintiff's] presentence report,' . . . along with the entirety of 'the victim impact statement associated with [plaintiff's]] criminal prosecution in the Eastern District of Virginia' . . . ."  "Relying on [those] representations, the FBI maintains that '[t]he same analysis applied to FBI support personnel applies to these individuals.'"  "The Court cannot agree."  "To be sure, the Court has previously recognized that prosecutors may enjoy a privacy interest in the non-disclosure of their names and contact information . . . and, indeed, if anything, the risk of harassment and retribution is likely greater for prosecutors than for administrative staff."  "Similar logic may justify the withholding of a probation officer's identifying information."  "But 'a bare assertion that a document's "disclosure would constitute a clearly unwarranted invasion of [an individual's] personal privacy" is not sufficient to establish that a substantial privacy interest in preventing disclosure exists.'"  "Here, the FBI's reliance on Exemptions 6 and 7(C) to protect the identity of the AUSA and the probation office employee at issue faces at least two difficulties."  "First, [plaintiff's] criminal case proceeded publicly, and an AUSA – perhaps the same AUSA in dispute here – undoubtedly appeared, both on the record and in court."  "Someone from the probation office likely appeared at [plaintiff's] sentencing as well, and the Court has no way of knowing whether that individual is the one whose identity is now at issue."  "Second, the FBI's evidentiary showing – a single paragraph in a declaration – is unduly thin, particularly in light of the possibility that the AUSA and the probation officer have, unlike the FBI's support personnel, already been publicly associated with [plaintiff's] criminal case."  "At least on the present record, therefore, the Court is unpersuaded that the FBI has carried its burden of demonstrating that disclosing the identity of the A[US]A, or of the probation office employee, would threaten a substantial privacy interest."  "Based on the sparse evidentiary record, the Court is also unable to conclude that the FBI has carried its burden with respect to the victim impact statement from [plaintiff's] criminal case."  "To be sure, it seems likely that the victim impact statement is deserving of protection . . . ."  "And, in the normal course, victim impact statements are filed under seal as part of the presentence report."  "If that were the case, and assuming those statements were not read in open court, their release would likely trigger the . . . 'injury and embarrassment that can result from the unnecessary disclosure of personal information.'"  "The difficulty, however, is that the FBI has failed to offer any evidence to this effect . . . ."
   
• Exemption 7(D):  As to Exemption 7(D), "[a]lthough [defendant's] declaration does not offer a great deal of detail, the Court concludes that it is sufficient to carry the FBI's burden."  "One of the factors identified by the D.C. Circuit – 'the character of the crime at issue,' – continues to weigh in favor of confidentiality . . . ."  "And as for 'the source's relation to the crime,' . . . six of the seven individuals at issue maintained either a 'close association' or a 'long-term association' with 'one or more targets of the investigation,' . . . ."  "Although [defendant] says nothing about payment of these individuals, this factor 'is not itself dispositive.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "[defendant] describe[s] the FBI's efforts to produce all segregable, non-exempt information."  Additionally, defendant "attests that [it] 'conducted a detailed, line-by-line review to satisfy EOUSA's reasonable segregability obligations,' and determined that 'EOUSA has released all reasonably segregable non-exempt information from records responsive to [plaintiff's] FOIA requests.'"
   
• Litigation Considerations, Exhaustion of Administrative Remedies & Fees and Fee Waivers, Fees:  "The Court concludes with the FBI's reliance on exhaustion."  "The agency argues that because [plaintiff] has failed to pay some of the required FOIA processing fees, he has 'fail[ed] to exhaust his administrative remedies' and therefore it is 'entitled to summary judgment.'"  "The Court agrees with the FBI, but only for those productions for which [plaintiff] has not paid; because [plaintiff] has, in fact, paid for three productions in 2019, . . . the FBI may not rely on exhaustion with respect to those productions."