Woodward v. USMS, No. 18-1249, 2022 WL 296171 (D.D.C. Feb. 1, 2022) (Contreras, J.)

Woodward v. USMS, No. 18-1249, 2022 WL 296171 (D.D.C. Feb. 1, 2022) (Contreras, J.)

Re:  Request for records concerning use of any cell phone tracking technology during criminal investigation that ultimately led to Plaintiff's conviction

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

• Exemption 7(C):  "The USMS invoked Exemption 7(C) to justify its redactions of names and other personal identifying information throughout its submission, including of law enforcement officials."  "This Court has already held, and continues to hold, 'that disclosure of the personally identifying information in USMS's files implicates strong privacy interests.'"  "The official duties of those individuals, the already-public nature of the involvement of some, and the passage of time may marginally lessen those personal privacy interests, but any such reduction is minimal."  "The Court acknowledged in its prior opinion that the public may have an interest in 'knowing whether the federal government engaged in unconstitutional conduct in Plaintiff's case.'"  "This interest is underscored by [Plaintiff's] status as a death row inmate, because '[t]he fact that [an individual] has been sentenced to the ultimate punishment strengthens the public's interest in knowing whether the [agency's] files contain information that could corroborate his claim of innocence.'"  "With the benefit of in camera review, the Court is able to determine that the disclosure of the names and personal identifying information of the law enforcement officers in this case would not further the public [interest] in understanding 'what their government is up to,' . . . with respect to this conviction or any other." "Because disclosure of law enforcement official's names would not actually further the asserted public interest, it does not outweigh the privacy interests at stake."  "Accordingly, the Court will grant summary judgment to the USMS with respect to the redaction of the names and personal identifying information of law enforcement officers."
  
  Regarding "'one-page fax cover sheet[s]'" requesting information from "'an organization external to the USMS,'" withheld in full under Exemptions 7(C) and 7(E), the court determined that while "some of the information on these two pages was properly withheld under Exemption 7(C), the Court determines from its in camera review that most of the document was reasonably segregable and must be released."  "The name and contact information of the investigating officer, as well as third party phone numbers, may be properly redacted under Exemption 7(C)."  "However, the USMS also withheld the name of the external organization that sent or received those faxes, specifically, a phone company."  "The Supreme Court has held in no uncertain terms that '[t]he protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations.'"  "Accordingly, there is no 'personal privacy' right at stake for the name of [the] corporate entity that was redacted or the message."  "Exemption 7(C) simply has no relevance here."
  
  Regarding records "contain[ing] 'handwritten, law enforcement officer notes pertaining to multiple third-party individuals'" that were withheld pursuant to "Exemptions 6, 7(C), 7(F), and 7(E)," "the Court finds based on a combination of the original justification and its in camera review that withholding of these two pages was justified under Exemption 7(C)."  "Both pages contain names, phone numbers, addresses, and emails, which implicate a strong personal privacy interest."  "Moreover, although there may be some public interest in the integrity of an investigation such as this one, which resulted in [plaintiff's] death sentence, the specific information found on these two pages would not likely 'advance that interest.'"  "[T]he [Court of Appeals for the District of Columbia Circuit] recognized that 'the public might well have a significant interest in knowing whether the federal government engaged in [unconstitutional conduct] in a capital case,' but that interest did not override the privacy interests at stake where an in camera review eliminated any concern of 'government misconduct.'"  "The same is true here, as the Court is satisfied from its own review of the documents that these two pages contain only lawfully collected investigative notes."  "Moreover, because both pages are almost entirely made up of this personal information, any potential segregation would 'produce an edited document with little informational value' and is not required."
   
• Exemption 7(E):  "USMS asserted Exemption 7(E) to redact case identifying numbers and other internal identifying codes, which the Court already found to surpass the low bar of Exemption 7(E) in its prior opinion."  "The Court remains satisfied following in camera review that the USMS has done so appropriately and grants the agency summary judgment with respect to case identifying numbers and internal codes."   
  
  Regarding Defendant's redaction of "telephonic data available for this fugitive," "[t]he Court finds that the USMS properly withheld some—but not all" of that information."  "The list of specific phone numbers could provide insight on law enforcement investigation techniques that satisfy the standard of Exemption 7(E) and was therefore properly redacted."  "But the mere fact that telephonic data was collected does not merit redaction."  "Perhaps in 2006 such a technique might not have been 'well known to the public,'" "but in 2022 it is safe to say that the potential for phones to double as tracking devices is common knowledge."  "Because the 'general contours' of cell data tracking is 'publicly known,' the USMS cannot redact the section of the document indicating its existence, but it may redact the 'confidential details' of what was tracked, specifically, the numbers that were investigated."  "For the same reasons, the USMS improperly redacted the name of a specific sub-unit that assisted with the investigation."  "The mere mention of this unit does not disclose any 'confidential details' of its operation,  . . . and the existence and general functions of the different components of the USMS are public knowledge."  "The USMS fails to meet its burden in showing how the disclosure of this single reference to one unit in a discrete investigation fifteen years ago 'could reasonably be expected to risk circumvention of the law.'"
  
  Regarding Defendant's withholding in full of "a one-page printout from a non-public USMS database [consisting] of four columns, which identify 'the specific law enforcement personnel from a specialized group tasked with investigating the Plaintiff,' 'an internal identifying number that identifies the law enforcement officer in the USMS database,' 'the start date of investigations pertaining to third party individuals,' 'internal codes, specific to a USMS database, which are acronyms representing identifiable investigatory actions taken by law enforcement personnel,' and 'information pertaining to third parties who were investigated in connection with the Plaintiff for apprehension purposes'" the court held that "USMS justified this withholding under Exemption 7(E)."  Defendant explained that "'[h]ow law enforcement officers are identified in certain databases, which law enforcement officers are assigned to certain investigations, and the specific database utilized to document an investigation, consist of, and reveal, law enforcement techniques and procedures that are not commonly known' and that '[w]ere the third-parties' association with the Plaintiff released, it could show what types of associates law enforcement would investigate in future fugitive cases, revealing law enforcement's collection of information or evidence and operational strategies.'"  "This explanation, in combination with the Court's in camera review, is sufficient to meet the agency's burden of withholding this page under Exemption 7(E)."  "This page contains 'confidential details' rather than 'general contours' of the investigative procedures used that are not public knowledge, and the agency has given a sufficient explanation for how that information could jeopardize future investigations."
  
  Regarding Defendant's use of Exemption 7(E) to protect the name of a phone company, "[t]he Court is hard-pressed to see how releasing this document risks circumvention of the law."  "Page 40 requests data for a specific phone number from that company, and page 38 confirms the company's response."  "The USMS's assertion that disclosing the name or even the broad generalities of the request would educate potential fugitives on avoiding apprehension strains credibility."  "As discussed above, collection of cell phone data from third-party companies is already a known law enforcement tactic, whose procedures are in fact detailed by statute."
  
  "[P]age 41 is a printout obtained from an entity external to the USMS pertaining to a third party individual,' which 'contains that individual's name, address, driver's license number, and email address' and 'is labeled ‘proprietary and confidential.'"  "The USMS asserts that disclosure of this document would 'signal[] the types of information law enforcement gathers and exploits to apprehend fugitives' that 'are not commonly known.'"  "The Court agrees that USMS has cleared the 'low bar' set by Exemption 7(E) with respect to this page."  "Moreover, because the information as a whole could collectively reveal law enforcement investigation techniques even with the otherwise personal information redacted, the Court is satisfied from its own review that this document does not contain any reasonably segregable portions."
  
  Regarding "printouts of USMS database" that contain "'internal law enforcement identifying numbers, alias information, fingerprint information, detailed criminal history analysis, data indicating law enforcement queries of an internal, nonpublic system, extradition information, and assessment regarding the danger an individual may pose to law enforcement and the public'" about the plaintiff, "[t]he Court must [] determine whether these documents were properly withheld in full under Exemption 7(E)."  "Although the Court harbors some skepticism of the USMS's concerns, the FOIA statute only requires that the Agency show disclosure 'could reasonably be expected to risk circumvention of the law.'"  "At least for the information described thus far, the combination of the Vaughn Index and in camera review satisfy that low burden."  "But the USMS again runs into a segregability issue."  "Even though certain portions of the printouts might risk future circumvention of the law, the Court is not persuaded for this page range that nothing was reasonably segregable."  "The USMS's previous concerns about disclosure allowing for inferences about the types of relationships that are investigated is nonexistent here, as all the documents relate to [plaintiff]."  "And the USMS lists right in its Vaughn Index several categories of information that are included in the printouts: 'alias information, fingerprint information, [and] detailed criminal history analysis.'"  "The USMS has done nothing to establish why the collection of that type of information is 'not generally known to the public' or assess 'the way(s) in which individuals could possibly circumvent the law' if that information relating to [plaintiff] were released."  "Nor is it clear to the Court even after in camera review that everything in these pages is wholly exempt."  "Accordingly, the USMS will be ordered to conduct a line-by-line segregability analysis . . . and release any non-exempt information consistent with the reasoning in this opinion." 
   
• Exemption 7(D) & 7(E):  "In another partial withholding . . . the USMS also labeled a single redaction as based on Exemption 7(D), which protects from disclosure information that 'could reasonably be expected to disclose the identity of a confidential source.'"  "The USMS has not so much as mentioned Exemption 7(D), much less attempted to justify this withholding under it."  "In at least one duplicate of one of those pages, though, the same redaction is instead labeled as a 7(E) withholding."  "The Court has determined from its in camera review that neither Exemptions 7(D) nor 7(E) support the redaction of this single phrase."  "Release would not disclose the identity of a confidential source because the document does not identify one by name or even relationship; rather, it only indicates that such a source existed."  "Nor would release 'disclose techniques and procedures for law enforcement investigations' in a way that 'could reasonably be expected to risk circumvention of the law.'"  "Again, the redacted phrase merely indicates that one or more informants existed."  "Such information hardly creates a risk of future circumvention of the law and was in fact mentioned in the Complaint and discussed in other released portions of the same production."  "The Court will therefore order disclosure of that single phrase."
   
• Litigation Consideration, In Camera Inspection:  "A more difficult question is the portion of pages 3–4, and duplicates thereof, which redacts a section of the document labeled 'telephonic data available for this fugitive,' followed by a list of phone numbers."  "The USMS does not mention this specific redaction in either its declaration or Vaughn Index."  "But there is not a strict method or form required for an agency to meet its withholding burden under FOIA as long as the Court is able to adequately conduct a de novo review."  "Most importantly here, the Court has the benefit of evaluating the unredacted information in camera."
   
• Procedural Requirements, "Reasonably Segregable" Obligation:  "Although this was a redacted section within a partially released document, the USMS was overly zealous with how much was redacted, even though a non-exempt portion of that section (the label) was reasonably segregable."  "Given that this document has already been released in part, the Court does not believe the difficulty in releasing this additional line would create an unreasonable burden, nor does its relatively brief nature render it 'meaningless' in the context of the document; much to the contrary, it is highly relevant to the request." "By redacting even the label on this section of the document, the USMS has effectively attempted to accomplish through redaction what an agency would normally do through a Glomar response—refusing to admit or deny the existence of responsive records."  "Summary judgment will therefore be granted in part to [plaintiff] on the non-exempt portions of pages 3–4, more specifically, the label of that subsection."
  
  Regarding "printouts from non-public law enforcement databases, some state-owned and some that are maintained by the USMS" which defendant withheld in full pursuant to Exemptions 7(C) and 7(E), the court found "[s]egregability presents a trickier question for this set of documents, however, since much of the exempt personal identifying information could be redacted."  "[plaintiff] correctly points out that 'the agency bears the burden of showing either that all information within the document is exempt, or that its non-exempt content cannot be disentangled from exempt material.'"  "The USMS's only attempt to meet this burden is a blanket statement in the first [agency declarant] declaration that 'line-by-line review was conducted to identify information exempt from disclosure.'"  "That indeed falls short of the agency's burden for this group of documents that were withheld in full."  However, the court found after in camera inspection that "[o]nce all the information that is permissibly withheld under 7(C) or 7(E) is redacted, all that would be left is 'an essentially meaningless set of words and phrases.'"  "Therefore, the Court holds that these documents were not reasonably segregable and grants summary judgment to the USMS."
   
• Exemption 7(F):  "The USMS's justification for withholding the information under 7(F) is predicated on its invocation of 7(E): 'If a fugitive knows specific details regarding how the USMS investigates fugitives  . . . that fugitive could modify his or her actions to evade law enforcement apprehension efforts' thereby 'plac[ing] law enforcement officers, as well as the public, in increased danger.'"  "The Court has already determined that the USMS failed to meet its burden of showing how disclosure of the company name and message would reveal such 'specific details' that risk circumvention of the law."  "The next step of its argument therefore necessarily fails as well."
   
• Litigation Considerations, Jurisdiction:  "The documents at issue, while they were at one point filed under seal, are in the USMS's possession and are undeniably responsive to the request.  "It is therefore the USMS's burden to show that the court's sealing order in fact functions as a ban on the voluntary release of these materials."  "The USMS has not even acknowledged that the withheld documents related to a sealed matter, much less attempted to meet that burden."  "Rather, it withheld the documents in full based on 7(E) and provided only a vague and incomplete description of their contents, effectively attempting a Glomar response that declined to answer whether there was information about the use of cell phone tracking technology at all—even though that was the primary focus of the request."  "It is also not clear to the Court from its in camera review of the documents that the USMS is actually prohibited from releasing this information."  "Each of the Orders contains nearly identical language sealing the case and prohibiting the phone company and its employees from disclosing the existence of the order or the investigation, but there is no similar prohibition directed toward the government."  "In addition, the government's rationale for requesting sealing in the applications was that disclosure would jeopardize the ongoing investigation . . . which is obviously no longer a concern at this point."  "This Circuit has 'discouraged serial summary judgment motions after the government's first loss.'"  "However, out of an abundance of caution and respect for the judicial process of another district court, the Court will permit the USMS a third and final chance to meet its burden with respect to these documents, by providing additional evidence 'such as transcripts and papers filed with the sealing court, casting light on the factors that motivated the court to impose the seal; . . . sealing orders of the same court in similar cases that explain the purpose for the imposition of the seals; or  . . . the [sealing] court's general rules or procedures governing the imposition of seals.'"  "If the USMS does not wish to assert that the seal on this 15-year-old case prohibits disclosure, it should conduct a line by line segregability analysis of this page range and release any non-exempt portions thereof."