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Widi v. McNeil

United States District Court, D. Maine

August 16, 2016

DAVID J. WIDI, JR., Plaintiff,
v.
PAUL MCNEIL, et al., Defendants.

          SUMMARY JUDGMENT ORDER ON COUNT XVIII

          JOHN A. WOODCOCK, JR. DISTRICT JUDGE.

         In this long-delayed Freedom of Information Act (FOIA) claim, various government agency defendants move for summary judgment based on their submission of a Vaughn index[1] 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.

         I. PROCEDURAL POSTURE

         This 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).

         On 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).

         On June 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.).

         On 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).

         II. SUMMARY JUDGMENT FACTS[2]

         A. EOUSA’s Identification of Responsive Records, Disclosure Determinations, and Document Productions to Mr. Widi

         On September 27, 2013, this Court denied dispositive motions previously filed by EOUSA and ATF with respect to Plaintiff’s original FOIA and PA claims.[3] 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.

         Upon receipt of Plaintiff’s FOIA/PA request, EOUSA undertook a search to determine the location of any and all files related to Plaintiff.[4] 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 PA.[5] DSMF ¶ 5; PRDSMF ¶ 5. EOUSA did, however, proceed to review the records under the provisions of FOIA. Id.

         By letter dated November 20, 2013, EOUSA released twenty-seven (27) pages in full and fourteen (14) pages in part to Plaintiff.[6] 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 ¶ 7.

         Thereafter, 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.

         With 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.

         EOUSA 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.[7] 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.[8] Id.

         B. EOUSA Referrals to BOP

         Kimberly 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. Id.

         On or 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.

         By 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.

         On 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.

         In the 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. Id.

         BOP 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. Id.

         C. EOUSA Referrals to USMS

         William 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.

         By 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.

         By 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. Id.

         During 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.

         The 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.[9] 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.

         By 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.[10] 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.

         The USMS prepared a Vaughn Index with respect to the information it redacted and withheld from the pages referred to it by EOUSA.[11] 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.

         D. ATF’s Identification of Responsive Records, Disclosure Determinations, and Document Productions to Mr. Widi, Including Documents EOUSA Referred to ATF

         Stephanie M. Boucher is the Chief of the Disclosure Division of ATF.[12] 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.[13] DSMF ¶ 29; PRDSMF ¶ 29; DRSMF ¶ 2.

         Plaintiff 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.

         By 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.

         By 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.

         ATF’s 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.[14] DSMF ¶ 34; PRDSMF ¶ 34. ATF nevertheless processed Plaintiff’s request under FOIA. Id.

         The 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 ¶ 37.

         On May 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.

         By 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.

         Based 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.

         On June 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.

         By 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.

         ATF 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 released.[15] Id.

         E. After Mr. Widi Filed his Opposition, ATF Identified and Released Additional Responsive Records, and ATF also Conducted its own Search for Responsive Records

         1. Additional Documents Released

         In his 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.

         Based 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 documents. Id.

         As 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.

         On 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.

         On 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 ¶ 9.

         This 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.

         The 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.

         By 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.

         The 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.

         2. A Fresh Search Conducted

         In 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.

         As 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.

         In Mr. 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.

         The 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 ¶ 18.

         3. Conclusion

         Based 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. Id.

         III. THE PARTIES’ POSITIONS

         A. The Defendants’ Motion

         While “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.

         The 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.

         To the 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 exemption.

         1. Exemption 3

         Exemption 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).

         2. Exemption 5

         Exemption 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.

         3. Exemption 6

         Exemption 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.

         4. Exemptions 7(C), (D), (E), and (F)

         Exemptions 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.

         a. Exemption 7(C)

         Exemption 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 cases).

         b. Exemption 7(D)

         Exemption 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.

         c. Exemption 7(E)

         Exemption 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 numbers.” Id.

         d. Exemption 7(F)

         Finally, 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 . . . .” Id.

         B. Mr. Widi’s Opposition

         On the 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.

         1. Mr. Widi’s Objections as to both ATF and EOUSA

         a. ATF’s and EOUSA’s Failure to Review under the Privacy Act

         Mr. 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).

         b. EOUSA Documents Improperly Referred to ATF Are Being Improperly Withheld by ATF

         Mr. 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)).

         c. ATF Documents Referred to EOUSA Improperly Withheld without Review

         Mr. Widi also claims that EOUSA failed to review a document that ATF referred to it. Id. at 15.

         2. Mr. Widi’s ...


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