Kowal v. United States Dep't of Justice

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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

September 30, 2021

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge.

Barbara Kowal, a paralegal at the Federal Defender for the Middle District of Florida, filed this Freedom of Information Act suit against the Department of Justice and three of its components, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Federal Bureau of Investigation, and the Drug Enforcement Agency. 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 others 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 were released in part to Kowal. After cross-motions for summary judgment, the Court granted summary judgment for Defendants as to the ATF and the adequacy of the FBI's search, but concluded that the FBI's Vaughn indices were inadequate. Since then, the FBI has updated its Vaughn indices and the parties have cross-moved again for summary judgment.

Defendants argue that their updated Vaughn indices are sufficient, they properly invoked certain FOIA exemptions to justify their withholdings, and they met their duty to disclose all reasonably segregable portions of the records at issue. In response, Kowal argues that the FBI's Vaughn indices are still inadequate, that the FBI failed to adequately justify the claimed FOIA exemptions improperly withheld information in the public domain, and failed to disclose all reasonably segregable information. The Court finds that the FBI's Vaughn indices are sufficient and that it properly invoked Exemptions 3, 6, 7(C), 7(D) 7(E), and 7(F). The Court also finds that the FBI met its duty to disclose all reasonably segregable portions of the records at issue. The Court will therefore grant Defendants' motion and deny Kowal's.

I. Background

The Court granted Defendants' previous motion for summary judgment as to the ATF and as to the adequacy of the FBI's search. Kowal v. DOJ, 490 F.Supp.3d 53, 72 (D.D.C. 2020). The Court assumes familiarity with the facts and the contents of its prior Opinion and Order. Since that time, Defendants have filed updated Vaughn indices and additional declarations. See ECF 31-2. Pending before the Court are their renewed cross-motions for summary judgment. ECF No. 31; ECF No. 36.

II. Legal Standard

“The court shall grant summary judgment if the movant shows that there is no genuine dispute to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. Summary judgment is appropriate when, “viewing the evidence in the light most favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.-Islamic Rels. Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016).

FOIA “requires federal agencies to disclose information to the public upon reasonable request unless the records at issue fall within specifically delineated exemptions.” Judicial Watch, Inc. v. FBI, 522 F.3d 364, 366 (D.C. Cir. 2008). It creates a “strong presumption in favor of disclosure, ” and “places the burden on the agency to justify the withholding of any requested documents.” U.S. Dep 't of State v. Ray, 502 U.S. 164, 173 (1991). If information is already in the public domain, an agency cannot invoke an otherwise valid exemption to withhold it. See Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 836 (D.C. Cir. 2001). When an agency withholds portions of a record, it must still disclose “[a]ny reasonably segregable portion . . . after deletion of the portions which are exempt.” 5 U.S.C. § 552(b).

A court reviewing a FOIA action may grant summary judgment based on the agency's declarations “[i]f an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith.” Am. Civil Liberties Union v. U.S. Dep t of Def, 628 F.3d 612, 619 (D.C. Cir. 2011). But the agency may not rely on “conclusory and generalized allegations of exemptions” in its affidavits. Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973).

III. Analysis

A. Sufficiency of FBI's Vaughn Indices

Kowal again challenges the sufficiency of the Vaughn indices provided by the FBI. Because FOIA requesters face information asymmetry that favors the agency, courts evaluating claimed FOIA exemptions must rely on the agency's representation of the materials it withholds. See King v. DOJ, 830 F.2d 210, 218 (D.C. Cir. 1987). A sufficiently detailed Vaughn index enables that evaluation. See Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006). An agency must use a Vaughn index to explain withheld information by “specifying] in detail which portions of the document are disclosable and which are allegedly exempt.” Vaughn, 484 F.2d at 827.

A court evaluates a Vaughn index on its function, not its form. See Keys v. DOJ, 830 F.2d 337, 349 (D.C. Cir. 1987). An adequate Vaughn index functions in part to enable the reviewing court to determine whether the agency properly invoked FOIA exemptions. See Lykins v. DOJ, 725 F.2d 1455, 1463 (D.C. Cir. 1984). It does so if it “provide[s] a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.” Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). Thus, an index must “state the exemption claimed for each deletion or withheld document, and explain why the exemption is relevant.” Founding Church of Scientology of Wash., D.C. v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).

Kowal argues that the FBI has not cured the deficiencies in its Vaughn indices and fails to “provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.” Mead Data Cent., Inc., 566 F.2d at 251. Kowal also argues that “[f]requently the level of detail in the document descriptions is insufficient to allow a requestor to reasonably determine whether the claimed exemptions have been properly invoked.” ECF No. 35 at 15. In ruling on the previous cross-motions for summary judgment, the Court noted that the lack of document descriptions or submission of redacted documents made it difficult to “understand with particularity which portions the FBI seeks to withhold under the exemptions claimed.” Kowal v. DOJ, 490 F.Supp.3d 53, 68 (D.D.C. 2020).

But the FBI's revised indices resolve these issues. The Vaughn indices now include descriptions as to the types of documents to which the exemptions are being applied. These descriptions work in combination with coded designations and Defendants' declarations to give further context as to why each exemption is relevant. In combination, these tools provide enough information for the Court to understand the nature of the redacted material. See Judicial Watch, 449 F.3d at 145. And ultimately, the FBI's revised Vaughn indices adequately enable the Court to review the agency's withholdings under these exemptions. See Lykins, 725 F.2d at 1463.

B. The FBI's Withholdings

1. Exemption 3

Defendants invoke Exemption 3 to withhold documents “relating to wire and electronic communications interception and interception of oral communications.” ECF No. 31-2 at 38 (“Second Hertel Decl.”) ¶ 9. FOIA's Exemption 3 exempts records that are “specifically exempted from disclosure by statute” if the statute “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue.” 5 U.S.C. § 552(b)(3)(A)(i). And the D.C. Circuit has held that “intercepted communications” obtained under a Title III wiretap fall “squarely within the scope” of Exemption 3. Chong v. DEA, 929 F.2d 729, 733 (D.C. Cir. 1991).

Defendants invoked this exemption for two pages of a “narrative summary of the initiation of an investigation of a targeted drug trafficking organization.” See ECF No. 31-2 at 12. The FBI's declaration explains that it invoked the exemption because portions of the records are based on wire and electronic communication interceptions and are thus protected under 18 U.S.C. § 3510. Second Hertel Decl. ¶ 9. But Kowal argues that Defendants have not met their burden to withhold these pages due to the potential applicability of the public domain doctrine. See ECF No. 35 at 17. She reasons that the recorded wiretaps were played at trial and are therefore part of the public domain. She invokes Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999), to suggest that these recordings “los[t] their protective cloak once disclosed” and that without more information, the Court cannot evaluate whether the FBI improperly withheld materials already in the public domain.

But Kowal's argument misses a critical point-the Vaughn index makes clear that the records at issue are part of a “narrative summary” document, not a transcript or tapes of a wiretap. See ECF No. 31-2 at 12. Even assuming the wiretaps referenced in the narrative summary were played at trial, Kowal has not shown that the document at issue is part of the public domain. “For the public domain...