United States District Court, D. Maine
DAVID J. WIDI, JR., Plaintiff,
PAUL MCNEIL, et al., Defendants.
SUMMARY JUDGMENT ORDER ON COUNT XVIII
A. WOODCOCK, JR. DISTRICT JUDGE.
long-delayed Freedom of Information Act (FOIA) claim, various
government agency defendants move for summary judgment based
on their submission of a Vaughn index that explained
the FOIA exemptions that form the basis for the withholding
of requested records. The Court agrees with the Government on
most, but not all of its explanations. For those documents
that do not meet the asserted exemption, the Court has given
the Government thirty days either to produce the document or
supplement its explanation.
case’s procedural history is tortuous. Mr. Widi filed
his original Complaint on June 13, 2012, Compl. (ECF
No. 1), and an Amended Complaint on August 2, 2012. Am.
Compl. (ECF No. 15) (Am. Compl.). In Count XIV
of the Amended Complaint, Mr. Widi alleged that the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF), the
Executive Office of the United States Attorneys (EOUSA), and
the Office of Information Policy (OIP) improperly withheld
statements made by particular persons with regard to Mr.
Widi’s criminal trial, United States v. Widi,
2:09-cr-00009-GZS, in violation of the Freedom of Information
Act (FOIA) and the Privacy Act (PA). Am. Compl. at
19-21. On September 30, 2013, the Court denied the
Defendants’ motion to dismiss Count XIV and both
parties’ cross-motions for summary judgment as to Count
XIV. Am. Order Denying Defs.’ Mot. to Dismiss Count
XIV, Denying Defs.’ Mot. for Summ. J. as to Count XIV,
and Denying Pl.’s Cross-Mot. for Summ. J. as to Count
XIV (ECF No. 173) (Sept. 30, 2013 Order).
December 2, 2013, the Defendants filed an Answer to Count
XIV. Answer to Am. Compl. (ECF No. 193)
(Answer). When the Court granted leave to amend the
Amended Complaint on February 11, 2015, the FOIA/PA claim
transferred from Count XIV to Count XVIII. Screening
Order, Order Vacating in Part Earlier Order Denying Mot. for
Leave to File Second Am. Compl. as to Served Defs., Order
Granting in Part Mot. to File Second Am. Compl., Order
Striking Portions of the Second Am. Compl., and Order Denying
Mot. to Stay (ECF No. 270).
29, 2015, ATF, EOUSA, and OIP-collectively, the Defendants
here- again moved for summary judgment on Count XVIII with a
supporting statement of material facts. Mot. for Summ. J.
on Count XVIII (ECF No. 302) (Defs.’
Mot.); Statement of Undisputed Material Facts
(ECF No. 305) (DSMF). Mr. Widi opposed the Defendants’
motion on December 4, 2015, Obj. to Mot. for Summ. J. on
Count XVIII (ECF No. 323) (Pl.’s
Opp’n), and he filed a reply to the
Defendants’ statement of material facts that same day.
Reply Statement of Material Facts (ECF No. 324)
(PRDSMF). On February 5, 2016, the Defendants filed a reply
to Mr. Widi’s opposition. Reply to Pl.’s
Opp’n to Defs.’ Mot. for Summ. J. on Count
XVIII (ECF No. 342) (Defs.’ Reply). That
same day, they filed a statement of additional material facts
supported by an affidavit. Reply Statement of Material
Facts (ECF No. 343) (DRSMF); Third Decl. of
Stephanie M. Boucher, Chief, Disclosure Division, Bureau of
Alcohol, Tobacco, Firearms and Explosives (ECF No. 344)
(Boucher Third Decl.).
March 4, 2016, Mr. Widi moved to either strike the
Defendants’ motion for summary judgment, their
statement of undisputed material facts, his own objection to
motion for summary judgment, and the Defendants’ reply
to his opposition, or for leave to file a surreply. Mot.
to Strike or for Leave to File Sur-Reply (ECF No. 347).
On March 7, 2016, the Defendants responded without objection
to Mr. Widi’s request for leave to file a surreply, and
the Court sua sponte allowed the Defendant’s reply
statement of material facts and granted Mr. Widi leave to
file a surreply. Defs.’ Resp. to Pl.’s Mot.
to Strike or for Leave to File Sur-Reply (ECF No. 348);
Order Denying Mot. to Strike and Granting Mot. for Leave
to File Surreply at 1-6 (ECF No. 349). On April 7, 2016,
Mr. Widi moved to extend time to file his surreply, Nunc
Pro Tunc Mot. for Enlargements of Time (ECF No. 352),
which the Court granted that same day, Order (ECF
No. 353), and on April 18, 2016, Mr. Widi filed his surreply.
Sur-Reply to Mot. for Summ. J. in Regard to Count
XVIII (ECF No. 355) (Pl.’s Surreply).
SUMMARY JUDGMENT FACTS
EOUSA’s Identification of Responsive Records,
Disclosure Determinations, and Document
Productions to Mr. Widi
September 27, 2013, this Court denied dispositive motions
previously filed by EOUSA and ATF with respect to
Plaintiff’s original FOIA and PA claims. DSMF ¶ 1;
PRDSMF ¶ 1. After the Court denied Defendants’
dispositive motions, Defendants filed their Answer. DSMF
¶ 2; PRDSMF ¶ 2. In their Answer, ATF and EOUSA
indicated that they were processing Plaintiff’s FOIA/PA
requests and were preparing substantive responses,
irrespective of any issues with mailing or the payment of
search fees. Id. In their Answer, Defendants also
noted that EOUSA had further referred certain documents
responsive to Plaintiff’s requests to ATF, the United
States Marshals Service (“USMS”), and the Federal
Bureau of Prisons (“BOP”), for processing and
potential production. Id. Defendants confirmed that
those agencies were substantively processing the documents
referred by EOUSA, and attached copies of the relevant
correspondence from EOUSA, ATF, BOP, and USMS to Plaintiff as
exhibits to their Answer. Id.
receipt of Plaintiff’s FOIA/PA request, EOUSA undertook
a search to determine the location of any and all files
related to Plaintiff. DSMF ¶ 3; PRDSMF ¶ 3. EOUSA
determined that all of the records related to Plaintiff were
located in the U.S. Attorney’s Office for the District
of Maine (“USAO”), where Plaintiff had been
prosecuted for possession of firearms and ammunition by a
felon and manufacturing marijuana. Id. The USAO
conducted a systematic search for records using the computer
case tracking systems TALON and LIONS, as well as other
databases and card file indexes, Plaintiff’s name, the
USAO file jacket number, and the district court case number,
to determine all possible locations of responsive files. DSMF
¶ 4; PRDSMF ¶ 4. The FOIA contact at the USAO also
sent out an email to the entire office regarding whether they
had any files in the office regarding Plaintiff. Id.
The only records located were contained in Plaintiff’s
criminal case file. Id. Although Plaintiff requested
records under both FOIA and the PA, EOUSA determined that the
responsive records were not disclosable under the
DSMF ¶ 5; PRDSMF ¶ 5. EOUSA did, however, proceed
to review the records under the provisions of FOIA.
letter dated November 20, 2013, EOUSA released twenty-seven
(27) pages in full and fourteen (14) pages in part to
Plaintiff. DSMF ¶ 6; PRDSMF ¶ 6. With
respect to the documents withheld in whole or in part, EOUSA
asserted that the following FOIA exemptions applied to the
records: 5 U.S.C. § 552(b)(3) (“Exemption
3”) (grand jury materials); 5 U.S.C. § 552(b)(5)
(“Exemption 5”) (privileged attorney work
product/deliberative process); 5 U.S.C. §§
552(b)(6) (“Exemption 6”) and (b)(7)(C)
(“Exemption 7(C)”) (personal privacy
protections); 5 U.S.C. § 552(b)(7)(D) (“Exemption
7(D)”) (confidentiality); and 5 U.S.C. §
552(b)(7)(F) (“Exemption 7(F)”) (threat of harm).
Id. Finally, in its November 20, 2013 letter, EOUSA
also advised Plaintiff that a volume of public records
(estimated at 1600 pages) was available upon request at an
estimated cost of $150.00. Id. Mr. Widi did not
receive the November 20, 2013 letter until EOUSA re-sent it
on February 20, 2015. Id. By letter dated May 14,
2015, EOUSA released an additional twenty-five (25) pages to
Plaintiff, with identified redactions. DSMF ¶ 7; PRDSMF
EOUSA prepared an index of all EOUSA documents withheld in
whole or in part, which detailed the specific FOIA exemptions
applied to justify nondisclosure of records responsive to
Plaintiff’s FOIA requests (“EOUSA Index”).
DSMF ¶ 8; PRDSMF ¶ 8.
respect to documents released in part to Plaintiff, EOUSA
categorically redacted the names of law enforcement agents,
employees of the U.S. Probation Office and the district
court, and the names of other third parties pursuant to
Exemption 7(C). DSMF ¶ 9; PRDSMF ¶ 9. Exemption
7(C) protects the release of records of information compiled
for law enforcement purposes if such release could reasonably
be expected to constitute an unwarranted invasion of personal
privacy. DSMF ¶ 10; PRDSMF ¶ 10. In this case, all
information regarding Plaintiff was compiled for law
enforcement purposes. Id. EOUSA further determined
that the release of the identities of, and personal
information about, third parties could subject such persons
to an unwarranted invasion of personal privacy and would
otherwise be detrimental to those persons. Id.
Accordingly, EOUSA redacted this information prior to
disclosing certain documents to Plaintiff. Id.
withheld a number of documents in full which related to the
underlying investigation and prosecution of Plaintiff, and
were exempt from disclosure pursuant to Exemptions 3, 5, 6,
7(C), 7(D), and/or 7(F). DSMF ¶ 11; PRDSMF ¶ 11.
Examples include: the prosecution memorandum prepared by the
Assistant U.S. Attorney who handled Plaintiff’s
criminal case; privileged intra-agency communications and
attorney work product created in anticipation of
Plaintiff’s criminal prosecution; and grand jury
records. Id. In connection with responding to
Plaintiff’s FOIA request, EOUSA evaluated each document
to determine whether any information could be segregated and
released. DSMF ¶ 12; PRDSMF ¶ 12. It is
the EOUSA’s position that the documents withheld in
their entirety contained no meaningful portions that could be
released without destroying the integrity of the document or
without identifying a third party individual or confidential
informant. Id. It is also the EOUSA’s position
that to the extent that large portions of text were withheld
within a document released in part, this principle and
practice was also true. Id.
EOUSA Referrals to BOP
Blow is employed by BOP as a Government Information
Specialist for the Office of General Counsel, Freedom of
Information/Privacy Action Section, in Washington, D.C. DSMF
¶ 14; PRDSMF ¶ 14. Ms. Blow’s duties and
responsibilities include reviewing BOP records that are
responsive to FOIA and PA requests, as well as making release
determinations pursuant to FOIA and applicable laws.
about October 22, 2013, BOP received a FOIA referral from
EOUSA. DSMF ¶ 16; PRDSMF ¶ 16. The referral
consisted of thirteen (13) pages of documents pertaining to
Plaintiff’s Competency to Stand Trial evaluation.
Id. Although the records were referred to BOP for
processing by EOUSA, BOP nevertheless logged the referral
into FOIAXpress (BOP’s computerized database for FOIA
and PA requests) and assigned it a unique BOP FOIA number.
DSMF ¶ 15-16; PRDSMF ¶ 15-16. The EOUSA referral to
BOP in October of 2013 was logged in as FOIA request number
2014-00420, and thereafter assigned to Ms. Blow for
processing. DSMF ¶ 16; PRDSMF ¶ 16.
letter dated November 12, 2013, BOP released three (3) pages
to Plaintiff in their entirety and ten (10) pages with
certain information redacted pursuant to Exemptions 6 and
7(C). DSMF ¶ 17; PRDSMF ¶ 17. Exemption 6 was
applied to exempt personnel and medical files and similar
files the disclosure of which BOP determined would constitute
a clearly unwarranted invasion of personal privacy.
Id. Exemption 7(C) was applied to exempt records
compiled for law enforcement purposes which BOP determined
could reasonably be expected to constitute an unwarranted
invasion of personal privacy. Id.
March 27, 2015, BOP was asked to prepare a Vaughn
Index. DSMF ¶ 18; PRDSMF ¶ 18. In response, BOP
reviewed the records again and determined that some
information previously redacted could be unredacted and
disclosed to Plaintiff. Id. BOP also concluded that
some additional limited information previously released fit
within the statutory language for a withholding. Id.
Accordingly, by letter dated April 10, 2015, BOP provided a
Supplemental Release to Plaintiff. Id.
Supplemental Release, BOP once again applied Exemptions 6 and
7(C) to redact information on privacy grounds. DSMF ¶
19; PRDSMF ¶ 19. In addition, BOP redacted certain
information pursuant to Exemption 7(F) because the records
had been compiled for law enforcement purposes, and BOP
concluded that disclosure of the redacted information could
endanger the lives or physical safety of an individual.
prepared a Vaughn Index to describe with
particularity the documents and all the meaningful
information contained there, including the exemptions claimed
and how the information withheld met the threshold
requirements for the claimed exemption. DSMF ¶ 20;
PRDSMF ¶ 20. The documents described in BOP’s
Vaughn Index were evaluated for segregability, and
all reasonably segregable responsive, non-exempt information
originating with BOP has now been produced to Plaintiff.
EOUSA Referrals to USMS
E. Bordley is an Associate General Counsel and the FOIA/PA
Officer of the USMS, assigned to the Headquarters, Office of
General Counsel, in Alexandria, Virginia. DSMF ¶ 21;
PRDSMF ¶ 21. Mr. Bordley is familiar with the procedures
followed by the USMS in responding to FOIA and PA requests
for information maintained in the records and files of the
USMS. Id. The USMS Headquarters Office of General
Counsel is responsible for processing all FOIA/PA requests
made to any USMS office located throughout the United States
pursuant to USMS policy. Id.
letter dated October 22, 2013, EOUSA referred six (6) pages
to the USMS that EOUSA had located in response to
Plaintiff’s FOIA request to EOUSA dated April 21, 2013.
DSMF ¶ 22; PRDSMF ¶ 22. The six pages had
originated with the USMS, and the USMS was asked to respond
directly to Plaintiff in accordance with 28 C.F.R. §
16.4(c)(2). Id. The EOUSA referral was assigned FOIA
Request Number 2014USMS24822. Id.
letter dated November 1, 2013, the USMS sent a response to
Plaintiff consisting of the six pages referred to the USMS by
EOUSA. DSMF ¶ 23; PRDSMF ¶ 23. The USMS asserted
Exemption 6 and Exemption 7(C) to withhold the names of law
enforcement personnel and other prisoners. Id. In
February of 2015, a copy of the USMS’s response was
re-sent to Plaintiff after Plaintiff claimed that he never
received the USMS’s letter dated November 1, 2013.
the course of the litigation, the USMS learned that ATF had
referred two documents that originated with the USMS, which
ATF had located in responding to a separately served FOIA
request. DSMF ¶ 24; PRDSMF ¶ 24. By letter dated
April 9, 2015, the USMS sent Plaintiff the two pages referred
to the USMS by ATF. Id. The USMS asserted Exemptions
6 and 7(C) to withhold the names of several USMS law
enforcement officers. Id.
records responsive to Plaintiff’s FOIA request are
maintained by the USMS in the Prisoner Processing and
Population Management/Prisoner Tracking System
(“PPM/PTS”), JUSTICE/USM-005 system of
records. DSMF ¶ 25; PRDSMF ¶ 25. Records
maintained in this system are compiled for law enforcement
purposes in connection with the USMS’s receipt,
processing, transportation, and custody of prisoners.
Id. As such, the USMS took the position that this
system of records is exempt from the access provision of the
Privacy Act pursuant to 5 U.S.C. § 552a(j)(2).
Id. To ensure maximum access, however, the records
were processed for disclosure pursuant to FOIA Id.
letter dated June 17, 2015, received by the USMS on June 25,
2015, ATF referred a CD/DVD accompanied by a Court Order
issued by the United States District Court Judge Woodcock in
the case of In re David Widi, Misc. No. 1:10-mc-
00133. DSMF ¶ 26; PRDSMF ¶ 26. The
order and accompanying CD/DVD are protected from disclosure
by an order sealing such records by Judge Woodcock.
Id. Accordingly, the USMS determined that it lacked
the authority to consider the releasability of this material
under FOIA. Id.
USMS prepared a Vaughn Index with respect to the
information it redacted and withheld from the pages referred
to it by EOUSA. DSMF ¶ 27. In sum, of the eight
total pages located by EOUSA and ATF and referred to the USMS
pertaining to Plaintiff’s requests, the USMS redacted
the names and other personal identifying information of law
enforcement officers, inmates, and one USMS administrative
employee based on personal privacy grounds under Exemptions 6
and 7(C), but otherwise produced the records to Plaintiff.
Id. The USMS took the position that no reasonably
segregable non-exempt portions of the itemized pages were
withheld from Plaintiff and that all documents were processed
by the USMS to achieve maximum disclosure consistent with the
provisions of FOIA. Id.
ATF’s Identification of Responsive Records,
Disclosure Determinations, and Document
Productions to Mr. Widi, Including Documents EOUSA Referred
M. Boucher is the Chief of the Disclosure Division of
ATF. DSMF ¶ 28; PRDSMF ¶ 28; DRSMF
¶ 1. In this capacity, Ms. Boucher receives all requests
made of ATF under FOIA and the Privacy Act. Id. Ms.
Boucher also reviews all requests referred to ATF from other
agencies that have located ATF documents in their records
while processing the FOIA and PA requests. Id. Ms.
Boucher is responsible for processing all FOIA and PA
requests, supervising the determination of which records
should be disclosed, processing all documents referred to ATF
from other agencies, and recording all administrative appeals
filed with ATF. Id. Ms. Boucher is familiar with the
procedures followed by ATF’s Disclosure Division in
responding to the FOIA request made by
Plaintiff. DSMF ¶ 29; PRDSMF ¶ 29; DRSMF
initially made a direct FOIA request to ATF dated March 28,
2011. DSMF ¶ 30; PRDSMF ¶ 30. The Disclosure
Division did not receive Plaintiff’s initial FOIA
request. Id. However, the Disclosure Division was
made aware of Plaintiff’’s initial FOIA request
after EOUSA forwarded a referral packet to the Disclosure
Division on October 22, 2013, and advised the Disclosure
Division that the documents were part of an ongoing
litigation. Id. At that time, the Disclosure
Division was provided with a copy of Plaintiff’s
Complaint and a copy of his initial request to ATF, as well
as a copy of the referral from EOUSA. Id.
email dated November 5, 2013, the Disclosure Division sent a
copy of Plaintiff’s FOIA request and a search form to
the FOIA point of contact for the Boston Field Division. DSMF
¶ 31; PRDSMF ¶ 31. The Disclosure Division
forwarded the request to the Boston Field Division based on
the information contained in the documents referred to ATF by
EOUSA. Id. The information contained in the records
sent to ATF by EOUSA included the requester’s name,
criminal investigation number, case agent name, and Field
Division. Id. This is the same information that
would have been pulled from a search of ATF’s case
management systems, which is the normal starting point for a
FOIA search based on a criminal prosecution. Id.
letter dated November 27, 2013, the Disclosure Division
acknowledged receipt of Plaintiff’s FOIA request and
assigned it request number 2014-0133. DSMF ¶ 32; PRDSMF
¶ 32. The Disclosure Division also acknowledged receipt
of the referral from EOUSA on the same date and assigned it
request number 2014-0132. Id.
field office in Portland, Maine, forwarded documents
responsive to Plaintiff’s FOIA request to the
Disclosure Division on December 17, 2013. DSMF ¶ 33;
PRDSMF ¶ 33. ATF determined that documents responsive to
Plaintiff’s request were exempt from disclosure under
Exemption (j)(2) of the Privacy Act. DSMF ¶ 34; PRDSMF
¶ 34. ATF nevertheless processed Plaintiff’s
request under FOIA. Id.
Disclosure Division sent Plaintiff a final response to his
FOIA request on April 25, 2014, as well as a final response
to the referral of documents from EOUSA. DSMF ¶ 35;
PRDSMF ¶ 35. The Disclosure Division also advised
Plaintiff that documents had been referred to the USMS and
EOUSA for processing and a direct response to Plaintiff.
Id. In its final responses, ATF enclosed the
released documents and indicated that ATF was withholding
information pursuant to Exemptions 3, 6, 7(C), 7(E), and
7(F). DSMF ¶ 36; PRDSMF ¶ 36. The Disclosure
Division re-sent its responses to Plaintiff on February 20,
2015, after it became aware that Plaintiff had not received
its April 25, 2014 correspondence. DSMF ¶ 37; PRDSMF
19, 2015, ATF learned that certain photographic and video
evidence in the USAO/District of Maine file had been
inadvertently omitted from the materials initially sent to
EOUSA. DSMF ¶ 38; PRDSMF ¶ 38. The photographic and
video evidence originated with ATF. Id. Accordingly,
the Disclosure Division was informed that the USAO would
forward the materials to EOUSA, which would then in turn
refer the materials to ATF for processing. Id.
letter dated May 26, 2015, EOUSA referred the following
materials to ATF for review and a direct response to
Plaintiff: (a) video of the execution of the search warrant
of Plaintiff’s home; (b) two videos of third party
interviews; (c) video of Plaintiff during his booking; and
(d) three discs of pictures from the search of
Plaintiff’s home. DSMF ¶ 39; PRDSMF ¶ 39.
on the notification provided by the USAO, the Disclosure
Division also doubled checked the files sent in from the
field in response to Plaintiff’s original FOIA request
and discovered that the photographic and video evidence had
been inadvertently omitted from the ATF initial search
response as well. DSMF ¶ 40; PRDSMF ¶ 40. A
Disclosure Specialist telephonically contacted the Special
Agent in charge of the criminal investigation of Plaintiff,
who verbally confirmed the existence of the photographic and
video evidence. Id. A Disclosure Specialist handling
the case then followed up the conversation with an email to
the Special Agent requesting that any outstanding materials
be sent in to the Disclosure Division. Id.
10, 2015, the Disclosure Division received copies of the
following materials from ATF’s Portland field office:
(a) video of the execution of the search warrant of
Plaintiff’s home; (b) two videos of third party
interviews; (c) video of Plaintiff during his booking; (d)
video footage originating with the USMS; (e) three discs of
pictures from the search of Plaintiff’s home; and (f) a
disc containing ATF forensic analysis of Plaintiff’s
home computer. DSMF ¶ 41; PRDSMF ¶ 41. The material
received from ATF’s field office differed slightly from
the material referred to ATF by EOUSA. Id.
ATF’s material included the ATF Forensic Analysis of
Plaintiff’s home computer and the video footage
originating with the USMS. Id.
letter dated June 29, 2015, the Disclosure Division forwarded
to Plaintiff a final response with respect to the materials
received on June 10, 2015. DSMF ¶ 42; PRDSMF ¶ 42.
conducted a thorough search for all documents responsive to
Plaintiff’s FOIA request. DSMF ¶ 43; PRDSMF ¶
43. ATF properly reviewed all information relating to
Plaintiff for the greatest degree of access and properly
withheld information pursuant to Exemptions 6, 7(C), 7(E),
and 7(F). Id. Ms. Boucher’s staff also
reviewed each page of the material identified as responsive
to ensure that no additional information could be
After Mr. Widi Filed his Opposition, ATF Identified
and Released Additional Responsive Records,
and ATF also Conducted its own Search for Responsive
Additional Documents Released
Opposition, Mr. Widi identified the following records as
having been excluded from ATF’s February 29, 2015
release of records to him, which had been previously referred
to ATF by EOUSA:
1. References in ATF’s Management Log to notice of
forfeitures sent to Mr. Widi;
2. Report of Investigation 13 (ROI 13);
3. Portsmouth Police Department Incident Report (EOUSA = ATF
Doc. No. 47)
4. 12/02/08 Eliot Police Department Continuation Report
(EOUSA = ATF Doc. No. 48);
5. Email Regarding High Capacity (EOUSA = ATF Doc. No. 49);
and 6. Email between local police officials regarding Guns
(EOUSA = ATF Doc. No. 50).
DRSMF ¶ 3.
on the items identified by Mr. Widi, Ms. Boucher spoke with
the Special Agent responsible for maintaining Mr.
Widi’s criminal file to determine whether these records
had been included in the initial copy of Mr. Widi’s
case file, when it was provided to the Disclosure Division in
response to ATF’s first search request. DRSMF ¶ 4.
The Special Agent confirmed that notices of forfeiture are
not maintained in the criminal investigatory file, but rather
fall under the purview of, and are maintained by, the Asset
Forfeiture Division. DRSMF ¶ 5. The Special Agent also
confirmed that ROI 13 was in fact part of the case file.
Id. With respect to ATF Doc. Nos. 47-50, the Special
Agent agreed to conduct a review of the case file to
determine whether the case file contained copies of said
confirmation of the specific records noted as missing by Mr.
Widi, a Specialist in the Disclosure Division itemized the
list of records that Mr. Widi noted as missing and sent it to
the Special Agent. DRSMF ¶ 6.
January 14, 2016, the Specialist in the Disclosure Division
also sent a request to ATF’s Asset Forfeiture division
for all records generated from Mr. Widi’s criminal
case. DRSMF ¶ 7. On January 21, 2016, in response to the
search request submitted to the Asset Forfeiture Division,
the Disclosure Division received a copy of (1) a certified
mail, return receipt Notice Letter dated December 8, 2008;
(2) a certified mail, return receipt Notice Letter dated
January 6, 2009; and (3) a Declaration of Administrative
Forfeiture. DRSMF ¶ 8.
January 27, 2016, the Special Agent in charge of Mr.
Widi’s criminal investigation undertook a page-by-page
comparison of the documents provided to the Disclosure
Division and the documents contained in the case file. DRSMF
extra step was taken to ensure that all responsive documents
had been provided to the Disclosure Division. Id.
The review confirmed that ATF’s criminal file for Mr.
Widi does not contain a copy of pages 329-333 in Document No.
48, which is a copy of the criminal history check of
witnesses done in preparation for trial and directly
transmitted to the Assistant U.S. Attorney handling Mr.
Widi’s case. DRSMF ¶ 10. The review also confirmed
that Mr. Widi’s criminal case file does not contain a
copy of the emails found as Documents 49 and 50. Id.
ATF did not retain a copy of these documents in Mr.
Widi’s case file. Id.
comparison of the documents revealed that ROI 13 had been
included in the original copy provided to the Disclosure
Division but was inadvertently excluded from the documents
released to Mr. Widi due to an administrative oversight in
the processing of records. DRSMF ¶ 11. The comparison
also revealed that the Disclosure Division’s copy of
Mr. Widi’s file did not contain the Eliot Police
Department Incident Report dated December 10, 2008, and a set
of documents tracking the release and receipt of property
related to evidence seized during Mr. Widi’s criminal
investigation that had been added to Mr. Widi’s file
well after the Disclosure Division’s 2014 release of
records to Mr. Widi. Id. (The December 10, 2008
Incident Report contained a copy of the (1) December 9, 2008
Portsmouth Police Department Incident Report and (2) December
2, 2008 Eliot Police Department Continuation Report.)
Id. No other records were found to have been missing
from the prior releases made to Mr. Widi. Id.
letter dated January 29, 2016, the Disclosure Division
forwarded to Mr. Widi a final response on the materials
received on January 21 and 27, 2016. DRSMF ¶ 12. The
release contained a copy of ROI 13, the December 10, 2008
Eliot Police Report, the release and receipt of property
documentation, and the records received from the Asset
Forfeiture Division. Id.
rationale for exempting the January 29, 2016 release from the
Privacy Act, as well as the determination of the applicable
FOIA Exemptions applied to these documents, conform with the
explanation provided in Ms. Boucher’s Second
Declaration. DRSMF ¶ 19. Ms. Boucher’s staff
reviewed each page of the January 29, 2016 release and the
content identified therein as responsive, to ensure that no
additional information could be released. DRSMF ¶ 20.
All reasonably segregable, non-exempt releasable information
has been provided to Mr. Widi. Id.
A Fresh Search Conducted
Plaintiff’s Opposition, Mr. Widi questioned the
adequacy of ATF’s search for records because the
Disclosure Division had not conducted a search through
N-Force or TECS, prior to submitting a search request to the
Field Division responsible for maintaining Mr. Widi’s
criminal file. DRSMF ¶ 13.
noted in Ms. Boucher’s June 29, 2015 Declaration,
EOUSA’s referral to ATF contained all of the qualifying
information necessary to retrieve the records requested by
Mr. Widi. DRSMF ¶ 14. In the absence of any qualifying
information, a Specialist in the Disclosure Division conducts
a search in N-Force or TECS to determine the location(s)
where an individual’s criminal records are maintained.
DRSMF ¶ 15. Based on the results from the search, a
search request is then submitted to the Field Division(s)
responsible for the criminal investigation(s). Id.
Widi’s case, the information in the records referred to
ATF by EOUSA nullified the need to conduct a preliminary
inquiry via N-Force or TECS as it identified the Field
Division responsible for maintaining Mr. Widi’s
criminal file. DRSMF ¶ 16. In light of Mr. Widi’s
objection, however, a Specialist in the Disclosure Division
conducted a search for records in N-Force using Mr.
Widi’s first and last name, date of birth, and social
security number to determine if any other criminal case files
pertaining to Mr. Widi were present. DRSMF ¶ 17.
N-Force search resulted in the identification of only one
criminal case file pertaining to Mr. Widi, Investigation
Number 762065-09-0023. Third Boucher Decl., ¶ 19. The
N-Force file relating to Mr. Widi is the same file as the one
retrieved, processed, and released to Mr. Widi in 2014. DRSMF
on the foregoing, ATF has concluded its search for all
documents responsive to Mr. Widi’s FOIA request, and
has confirmed that the recent January 29, 2016 release, in
conjunction with the prior April 2014 and June 2015 releases,
represent the entirety of all materials contained in Mr.
Widi’s case file. DRSMF ¶ 21. ATF has properly
reviewed all information relating to Mr. Widi for the
greatest degree of access, and properly withheld information
pursuant to FOIA Exemptions (b)(6), (b)(7)(C), and (b)(7)(F)
in its January 29, 2016 release. DRSMF ¶ 22. ATF has
prepared a Supplemental Vaughn Index in connection
with the January 29, 2016 release of records which describes
in detail each responsive document and all meaningful
information contained therein, including the exemptions
claimed and how the information withheld met the threshold
requirements for the claimed exemption. DRSMF ¶ 23. ATF
has now provided all reasonably segregable responsive,
non-exempt information originating with ATF to Plaintiff.
THE PARTIES’ POSITIONS
The Defendants’ Motion
“acknowledg[ing] that federal agencies bear the burden
of establishing the applicability of claimed exemptions under
FOIA, ” Defs.’ Mot. at 13 (citing 5
U.S.C. § 552(a)(4)(B)), the Defendants stress that
courts resolve “[m]ost” FOIA cases at summary
judgment on the basis of “agency affidavits and
declarations.” Id. at 14 (citing Brown v.
U.S. Dep’t of Justice, No. 1:13-cv-01122-LJO-SKO,
2015 WL 1237274, at *3 (E.D. Cal. Mar. 17, 2015)). The
Defendants’ overarching argument is that they
“have now produced all non-exempt records responsive to
[Mr. Widi’s] original FOIA requests and established
that any information withheld or redacted from responsive
records is exempt from disclosure under FOIA.”
Id. at 1.
Defendants assert that they “conducted adequate
searches for responsive records.” Id. at 15.
Adequacy, they submit, is to be measured “by a standard
of reasonableness, ” id. (quoting Weisberg
v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351
(D.C. Cir. 1983)), which “requires ‘both systemic
and case-specific exercises of discretion and administrative
judgment . . . .’” Id. at 15-16 (quoting
Schrecker v. U.S. Dep’t of Justice, 349 F.3d
657, 662 (D.C. Cir. 2003)). They refer back to the facts and
state that “the adequacy of the search is not an issue
in this case . . . .” Id. at 16.
extent that the Defendants have withheld or redacted
responsive documents, they contend that such actions
“were proper under one (or more) applicable FOIA
exemptions.” Id. The Defendants then march
through their withholdings and redactions exemption by
3 protects information “specifically exempted from
disclosure by statute.” Id. at 17 (quoting 5
U.S.C. § 552(b)(3)). Federal Rule of Criminal Procedure
6(e) “establishes a presumption of nondisclosure of
Grand Jury materials, ” id. (quoting Leon
v. United States, 250 F. App’x 507, 509 (3d Cir.
2007) (per curiam)), and-according to the
Defendants-“satisfies Exemption 3’s statute
requirement.” Id. (citing Fund for
Constitutional Gov’t v. Nat’l Archives &
Records Serv., 656 F.2d 856, 867 (D.C. Cir. 1981);
Cozen O’Connor v. U.S. Dep’t of
Treasury, 570 F.Supp.2d 749, 776 (E.D. Pa. 2008)). Thus,
“[i]n this case, the materials withheld by EOUSA
clearly fall with the purview of Rule 6(e) and Exemption 3,
and were therefore properly withheld.” Id. at
17-18 (collecting cases).
5 protects “inter-agency or intra-agency memorandums or
letters which would not be available by law to a party . . .
in litigation with the agency.” Id. at 19
(quoting 5 U.S.C. § 552(b)(5)). The Defendants assert
two privileges, attorney work product and deliberative
process, that they believe entitle them to protection under
Exemption 5. Id. at 19-21. The attorney work product
privilege covers documents that were “created in
connection with the prosecution of [Mr. Widi], ”
id. at 20, while the deliberative process privilege
covers documents “that reflect decision-making by
agency officials regarding the scope and focus of the pending
investigations [of Mr. Widi].” Id. at 21.
6 protects “personnel and medical files and similar
files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” Id.
at 21 (citing 5 U.S.C. § 552(b)(6)). The test, as set
out by the Defendants, is “whether disclosure of the
information threatens a protectable privacy interest; if so,
the agency must weigh that privacy interest against the
public interest in disclosure, if any.” Id. at
22 (citing Reed v. NLRB, 927 F.2d 1249, 1251 (D.C.
Cir. 1991)). The Defendants recount how an alphabet soup of
agencies-“ATF, EOUSA, USMS and BOP”-applied this
test, found a threat to privacy interests, and determined the
privacy interests outweighed the countervailing public
interest in disclosure as regards an array of information:
“the names of law enforcement personnel, ”
“the names of BOP personnel, ” “the names
of other inmates, ” and “the names and
identifying information of individuals who provided
information to the Government.” Id. at 22-24.
Exemptions 7(C), (D), (E), and (F)
7(C), (D), (E), and (F) all protect information compiled for
law enforcement purposes. Id. at 24 (citing 5 U.S.C.
§ 552(b)(7)). Because the agencies asserting protection
under these exemptions specialize in law enforcement, the
Defendants claim that these agencies are “entitled to
deference.” Id. at 25 (quoting Ctr. for
Nat’l Sec. Studies v. U.S. Dep’t of Justice,
331 F.3d 918, 926 (D.C. Cir. 2003)). The Defendants address
each of these subsections in turn.
7(C)-like Exemption 6-guards personal information, but the
Defendants claim Exemption 7(C) has a more stringent test
because it addresses personal information in the particular
context of law enforcement. Id. (quoting
Nat’l Archives & Records Admin. v. Favish,
541 U.S. 157, 172 (2004)). The Defendants identify two
categories of information withheld pursuant to Exemption
7(C): first, the identity of law enforcement officers and
support staff, which they say is “routinely protected
under the FOIA privacy exemptions, ” id. at 26
(collecting cases); second, the identity of third parties,
e.g., other prisoners, which they say is “generally
categorically exempt.” Id. at 27 (collecting
7(D) allows for “redaction of law enforcement records
where their release ‘could reasonably be expected to
disclose the identity of a confidential source.’”
Id. at 27 (quoting 5 U.S.C. § 552(b)(7)(D)).
According to the Defendants, Exemption 7(D) “requires
no balancing of public and private interests, ”
id. (citing Dow Jones & Co. v. U.S.
Dep’t of Justice, 917 F.2d 571 (D.C. Cir. 1990));
rather, it “applies if an agency establishes that a
source has provided information under either an express or
implied promise of confidentiality.” Id.
(citing Williams v. FBI, 69 F.3d 1155, 159 (D.C.
Cir. 1995)). In this case, they contend that EOUSA
“properly withheld” the names of people
“who have provided information to investigators under
assurances of confidentiality.” Id. at 28.
7(E) authorizes the withholding of information that
“would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions
if such disclosure could reasonably be expected to risk
circumvention of the law.” Id. at 28 (quoting
5 U.S.C. § 552(b)(7)(E)). Here, ATF used Exemption 7(E)
as a shield to protect “internal case preparation
checklists, operations plans used to plan and implement the
arrest of Plaintiff, and TECS and NCIC computer file
Exemption 7(F) does not require disclosure that “could
reasonably be expected to endanger the life or physical
safety of any individual.” Id. at 29 (citing 5
U.S.C. § 552(b)(7)(F)). The Defendants suggest that Mr.
Widi has violent tendencies and threatened a witness at
trial, which bolsters ATF’s, EOUSA’s, and
BOP’s reliance on Exemption 7(F) “to protect the
identities of law enforcement personnel, other government
employees, and other individuals who have cooperated with or
participated in [his] criminal investigation . . . .”
Mr. Widi’s Opposition
legal standard, Mr. Widi asserts that FOIA requires
“broad disclosure” unless “a specific
narrowly construed exemption applies, ” Pl.’s
Opp’n at 5 (citing Aronson v. IRS, 973
F.2d 962, 966 (1st Cir. 1992)), and that it also requires
partial disclosure of segregable documents. Id. at 6
(citing 5 U.S.C. § 552(b); Wightman v. Bureau of
ATF, 755 F.2d 979, 983 (1st Cir. 1985)). Mr. Widi raises
an array of objections to the Defendants’ motion for
summary judgment. He focuses on the perceived shortcomings of
two agencies, ATF and EOUSA, and the Court organizes its
summary of his arguments by agency.
Mr. Widi’s Objections as to both ATF and EOUSA
ATF’s and EOUSA’s Failure to Review under the
Widi argues that EOUSA and ATF “continue to maintain
that Mr. Widi’s request is exclusively cognizable under
FOIA and not under the PA, ” id. at 7, despite
the fact that the law of the case-as set forth in the
Court’s September 30, 2013 order-establishes that the
Defendants are “at least partially incorrect” on
this point. Id. at 7 (quoting Sept. 30, 2013
Order at 30).
EOUSA Documents Improperly Referred to ATF Are Being
Improperly Withheld by ATF
Widi again argues that the Defendants are at odds with the
Court’s September 30, 2013 order. There, the Court
wrote that FOIA and the PA do not “permit the agency
receiving the request to ‘refer’ records in its
possession to other government components for ‘review
and direct response, ’” id. at 15
(quoting Sept. 30, 2013 Order at 26), yet
“the EOUSA has handled Mr. Widi’s request by
forwarding it to the ATF for a direct response, ” and
to make matters worse, “the ATF has now improperly
applied exemptions to the requested records.”
Id. Mr. Widi then provides a catalogue of these
putative misapplications. Id. at 16-17 (discussing
errors in the application of Exemptions 6, 7(C), and 7(F)).
ATF Documents Referred to EOUSA Improperly
Withheld without Review
Widi also claims that EOUSA failed to review a document that
ATF referred to it. Id. at 15.
Mr. Widi’s ...