Kowal v. U.S. Dep't of Justice

490 F.Supp.3d 53

Barbara KOWAL, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE et al., Defendants.

Civil Action No. 18-2798 (TJK)

United States District Court, District of Columbia.

Signed September 24, 2020

Donald Todd Doss, Office of the Federal Defender Middle District of Florida, Orlando, FL, for Plaintiff.

Jeremy S. Simon, Scott Leeson Sroka, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

TIMOTHY J. KELLY, United States District Judge

Barbara Kowal, a paralegal at the Federal Defender for the Middle District of Florida, filed this FOIA suit against the DOJ and three of its components, the ATF, FBI, and DEA. Kowal requested all records from the ATF and FBI pertaining to Daniel Troya, a capital defendant represented by the Federal Defender in his post-conviction hearings. The ATF and FBI produced documents from their records systems, but withheld some documents in whole or in part under several FOIA and Privacy Act exemptions. The FBI also sent a subset of documents to the DEA for review, which the DEA released in part to Kowal.

Defendants moved for summary judgment, arguing that the ATF and FBI adequately searched for records, and that the ATF, FBI, and DEA properly withheld documents under certain FOIA and Privacy Act exemptions and met their duty to disclose all reasonably segregable portions of the records. Kowal then cross-moved for summary judgment, arguing that the searches were deficient because the ATF and FBI failed to use adequate search terms and search all relevant records systems, and that the ATF, FBI, and DEA failed to adequately justify the exemptions at issue, improperly withheld information in the public domain, and failed to disclose all reasonably segregable information. For the reasons explained below, the Court will grant Defendants’ motion and deny Kowal's as to her claims against the ATF and the adequacy of the FBI's search, and otherwise deny the motions without prejudice.

I. Background

Kowal's office began representing Daniel Troya ("Troya") in his capital post-conviction proceedings in April 2015. ECF No. 1 ("Compl.") ¶ 8. Kowal requested all records from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and Federal Bureau of Investigation (FBI) pertaining to Troya under the Freedom of Information Act (FOIA). Id. ¶¶ 13, 18, 19. Kowal submitted one FOIA request to the ATF and two requests to the FBI.¹ Id. The FBI sent a subset of the documents that it identified in response to Kowal's first request to it to the Drug Enforcement Administration (DEA) and referred Kowal's entire second request to the ATF. Id. ¶¶ 16, 21. The DEA informed Kowal that it had already processed most of the documents by responding to a previous request she had directed to it, and released the remaining documents to her, in part, through the FBI. Id. ¶ 17; ECF No. 1-5; ECF No. 1-6. Because the Court has already addressed the DEA's response to Kowal's previous FOIA request, Kowal v. DOJ , 464 F.Supp.3d 376, 379-80 (D.D.C. 2020) (" Kowal I "), it need not do so again here.

A. FBI

In June 2015, Kowal submitted a FOIA request to the FBI seeking documents related to Troya's prosecution. Compl. ¶ 13. She requested "all documents, files, records, etc. pertaining to any investigation, arrest, indictment, conviction, sentencing, incarceration, and/or parole of ... Daniel Troya (a/k/a ‘Homer’), DOB: 04/22/1983" and cited his federal criminal charges. Id. ; see ECF No. 1-1.

The FBI identified and reviewed records responsive to Kowal's FOIA request, and from those it released 134 pages in full, withheld 141 pages in their entirety, and sent some of its records to the DEA for further review. Compl. ¶ 16.² As for the documents it withheld without DEA review, the FBI invoked FOIA Exemptions 6, 7(C), 7(D), 7(E), and Privacy Act Exemption (j)(2). Id. ; see ECF No. 1-4; ECF No. 19-6 ("Hardy Decl.") ¶ 7 n.3. Exemption (j)(2) allows heads of agencies to exempt from disclosure any system of records with a principal function of any activity pertaining to criminal law enforcement. 5 U.S.C. § 552a(j)(2). Exemption 6 protects information in personnel and medical files when disclosure would "constitute a clearly unwarranted invasion of personal privacy." Id. § 552(b)(6). The remaining exemptions apply to information compiled for law enforcement purposes: Exemption 7(C) protects against unwarranted invasions of personal privacy; Exemption 7(D) protects the identities of confidential sources or information furnished by confidential sources; and Exemption 7(E) protects law enforcement techniques and procedures. Id. §§ 552(b)(7)(C), (b)(7)(D), (b)(7)(E).

Of the 83 pages the FBI sent to the DEA, most had already been processed in connection with the previous FOIA request made by Kowal; the DEA returned the remaining pages to the FBI, which released them in part to Kowal. Compl. ¶ 17; ECF No. 1-5; ECF No. 1-6.³ For these documents, the FBI, based in part on the DEA's recommendations, invoked Privacy Act Exemption (j)(2) and FOIA Exemptions 3, 6, 7(C), 7(D), 7(E), and 7(F). ECF No. 1-5. Exemption 3 spares from disclosure matters that must be withheld under statute, 5 U.S.C. § 552(b)(3), and Exemption 7(F) protects against endangering the life or physical safety of any person, id. § 552(b)(7)(F).

In its declaration supporting its motion, the FBI states that it conducted its search for responsive documents within its Central Records System (CRS), its "extensive system of records ... compiled and maintained by the FBI in the course of fulfilling its integrated missions and functions as a law enforcement, counterterrorism, and intelligence agency" that "spans the entire FBI organization and encompasses the records of FBI Headquarters ... FBI Field Offices, and FBI Legal Attache Offices ... worldwide." Hardy Decl. ¶¶ 21, 34. The CRS uses an index search methodology that is "reasonably expected to locate responsive material within the vast CRS since the FBI indexes pertinent information into the CRS to facilitate retrieval to serve its primary law enforcement and intelligence gathering functions." Id. ¶ 32. In searching for records responsive to Kowal's request, the FBI used its Automated Case Support (ACS) and Universal Index (UNI) to capture data that had been indexed in its older automated systems. Id. ¶¶ 26, 29. The FBI then conducted an index search in Sentinel, a case management system in place since July 2012 in which "all FBI generated records are created electronically in case files," to "ensure it captured all relevant data indexed." Id. ¶¶ 27, 29.

In sum, the FBI conducted index searches in the CRS for the terms "Daniel Anthony Troya" and "Homer Troya" (referencing Troya's alias) using the ACS/UNI and Sentinel automated indices, from which it located and processed one main file and one cross-reference record. Id. ¶ 33. The FBI characterizes a main file as a "main index entry ... created for each individual or non-individual that is the subject or focus of an investigation," and the "main subject(s) are identified in the case title of most documents in a file." Id. ¶ 23. In contrast, a "cross-reference record" is a "reference index entry ... created for individuals or non-individuals associated with the case [who] are not the main subject(s) or focus of an investigation," and "[r]eference subjects are typically not identified in the case title of a file." Id. Because the CRS is "where the FBI indexes information about individuals, organizations, events, and other subjects of investigative interest for future retrieval," the FBI maintains that it adequately searched for records concerning "any investigation, arrest, indictment, conviction, sentencing, incarceration, and/or parole" of Troya. Id. ¶ 34.

The FBI also provided a Vaughn index of the documents it withheld in part or in full based on FOIA and Privacy Act exemptions. See ECF No. 19-7 at 73–85 ("FBI Index").⁴ The index includes entries for the documents sent to the DEA for consultation. See id. , Bates Nos. 31–46; ECF No. 19-5 ("Hertel Decl.") ¶ 10.⁵ It works in tandem with a declaration from the FBI and, to some extent, a declaration from the DEA, which describe the types of general information withheld under each exemption. See Hardy Decl. ¶¶ 38–78; Hertel Decl. ¶¶ 11–29.⁶ The Vaughn index uses a "coded format" – that is, each entry in the index provides the applicable Bates number for the page, a short description where a page has been withheld in full, and a checklist of exemptions claimed for the page that corresponds to coded categories describing the information withheld. See FBI Index.

B. ATF

Kowal submitted two more FOIA requests for the same records in August 2017: one to the FBI requesting the ATF's files; and one to the ATF directly. Compl. ¶¶ 18–19; ECF No. 1-7; ECF No. 1-8. The FBI soon informed Kowal that her request was being routed to the ATF for processing. Compl. ¶ 21; ECF No. 1-10. The ATF identified and reviewed 467 pages it found responsive to Kowal's FOIA request, and from those pages it released 61 pages in full and 212 pages in part, and withheld 194 pages in their entirety. Compl. ¶ 25; ECF No. 1-14. The ATF invoked FOIA Exemptions 6, 7(C), and 7(E) in its decision to withhold documents in whole or in part. Compl. ¶ 25; see ECF No. 1-14.⁷ The ATF later informed Kowal that its response to her FOIA request incorporated the request that the FBI routed to the ATF. Compl. ¶ 28; ECF No. 1-17. After Kowal appealed, the ATF released in part one more page to her. Compl. ¶ 29. The ATF also located another 13 pages responsive to Kowal's request when it was preparing its declaration; it released them to her in a supplemental response. ECF No. 19-2 ("Siple Decl.") at 5–6.

In its declaration supporting its motion, the ATF states that it conducted its search for responsive documents in the "two systems of records where ATF records of criminal investigations are housed," "N-Force" and the Treasury...