Woodward v. USMS, No. 18-1249, 2021 WL 1546460 (D.D.C. Apr. 20, 2021) (Contreras, J.)

Woodward v. USMS, No. 18-1249, 2021 WL 1546460 (D.D.C. Apr. 20, 2021) (Contreras, J.)

Re:  Request for records concerning any use of cell phone tracking technology during criminal investigation that led to plaintiff's conviction of capital murder and his death sentence

Disposition:  Denying defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 7(C):  "The Court reserves judgment . . . with respect to Plaintiff's second proffered public interest in potential constitutional violations in his capital case."  "Upon review of the withheld information in camera, the Court will conduct the required balancing of this interest with the significant privacy interests at stake to determine whether USMS properly invoked Exemption 7(C)."  Regarding privacy interests, the court relates that "[defendant] explains that 'the personally identifiable information of law enforcement officers and government employees (such as, USMS employees) was withheld' because disclosure 'could subject law enforcement officers and other government personnel to harassment and unwelcome contact.'"  "[T]he Court concludes that disclosure of the personally identifying information in USMS's files implicates strong privacy interests."  Regarding public interests, the court first finds that "Plaintiff does not put forth compelling evidence of any illegal use of cell phone tracking technology in support of his FOIA request."  "[Plaintiff's] allegation, without more, does not amount to compelling evidence of illegal activity."  However, while the court finds that "Plaintiff has not articulated a claim of actual innocence[,]" "the Court appreciates the gravity of Plaintiff's status as a death row inmate."  "To confirm for itself that the withheld information does not implicate the public's interest in knowing whether the federal government engaged in unconstitutional conduct in Plaintiff's case, the Court will review in camera the withheld material."
   
• Exemption 7(E); Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court will await further justification from USMS on its Exemption 7(E) claims before ruling on segregability."  The court finds that "[s]ome of USMS's claims of Exemption 7(E) clear the 'relatively low bar' set by the statute."  "In its Vaughn Index, USMS explains that '[d]isclosure of internal identifying codes and numbers could assist unauthorized parties in deciphering the meaning of codes and numbers, aid in gaining improper access to law enforcement databases, and assist in the unauthorized party's navigation of the law enforcement databases.'"  "USMS further explains that 'how law enforcement officers are identified in certain databases, as well as the specific databases utilized, are law enforcement techniques and procedures that are not commonly known.'"  "The Court understands that the redactions carrying these, or similar, justifications apply to information regarding the data management techniques and procedures used internally by USMS."  "The Court finds that these explanations sufficiently justify the invocation of Exemption 7(E) because they describe the techniques or procedures at issue and explain how disclosure might create a risk of circumvention of the law."  "Other Exemption 7(E) justifications are too vague to justify withholding."  "For example, the Vaughn Index includes the following justification for various portions of the production:  'Information regarding how law enforcement officers investigate targets of a criminal operation and the dates those actions start discloses case development strategy, as well as law enforcement procedures not known to the public.'"  "These explanations leave the Court guessing as to what techniques or procedures the agency wishes to protect from disclosure and how disclosure could reveal them."  "Therefore, the Court concludes that USMS must do more to justify its withholdings under Exemption 7(E) that do not relate to internal identifying codes and databases."
  
  "Further complicating matters is the fact that the Court cannot determine which redactions correctly invoke Exemption 7(E) and which redactions require more explanation."  "For certain pages or sets of pages, USMS’s Vaughn Index provides both an appropriate and an inappropriate justification for the claim."  "For this reason, the Court cannot yet decide whether USMS has released all segregable non-exempt information."