Carpezzi v. U.S. Department of Justice

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ROBERT CHRISTOPHER CARPEZZI,

Plaintiff,

v.

Case No. 2:21-cv-180-JLB-KCD

UNITED STATES DEPARTMENT OF

JUSTICE,

Defendant.

_______________________________________/

ORDER

Plaintiff Robert Carpezzi, proceeding pro se, brings this suit against the

United States Department of Justice (the “DOJ”) to compel compliance with the

Freedom of Information/Privacy Act (“FOIA”). (Doc. 49). The DOJ filed a Motion

for Summary Judgment (Doc. 63), which Mr. Carpezzi opposed (Doc. 65). The DOJ

filed a reply (Doc. 67) and Mr. Carpezzi filed a sur-reply (Doc. 69), which this Court

considered despite the fact that Mr. Carpezzi did not seek leave to file such sur-

reply. After careful review of the summary judgment record, the Court GRANTS

the DOJ’s motion for summary judgment.

BACKGROUND1

In his Second Amended Complaint, Mr. Carpezzi claims that he seeks access

to the following: (1) “[a]ll records, including American Online (‘AOL’) investigation

into the illegal hacking and impersonation of [Mr. Carpezzi’s] rccarpezzi@aol.com

email address and the FBI’s investigation into the matter[;]” and (2) “complete

transcription of January 2016 conversation at FBI Headquarters in Denver.” (Doc.

49 at ¶ 2).

On November 23, 2015, Mr. Carpezzi wrote a letter to James Comey,

demanding $35,000,000 for the “impersonating of [his] email address and thwarting

any attempts for redress” and $1,750,000 for “all the other constitutional rights [he]

[has] tossed to the curb.” (Doc. 65-8 at 4).

On January 21, 2016, Mr. Carpezzi initiated an in-person complaint with the

Federal Bureau of Investigation (“FBI”). (Doc. 65-2; Doc. 63-1 at ¶ 31). An FBI

Complaint form (“FD-71”) dated January 25, 2016, indicated that, among other

things, Mr. Carpezzi believes that his email was hacked by the government, that he

believes he is being followed by law enforcement, and that he complained about an

IRS audit. (Doc. 65-2 at 2).

On September 26, 2016, Mr. Carpezzi submitted a FOIA request to the FBI

1 This background is based on the Statement of Undisputed Facts in the DOJ’s

motion for summary judgment (Doc. 63 at 1–4) and the Statement of Undisputed

Facts in Mr. Carpezzi’s response (Doc. 65 at 2–3), with citations to the record where

available. Mr. Carpezzi stated that he agreed with the DOJ’s statement of

undisputed facts, but added additional facts, which the DOJ indicated were

irrelevant but did not dispute. (See Doc. 65 at 2; Doc. 67 at 3–4).

explaining that his email address was “hacked into by the government/police” and

that such hackers “took over [his] account [and] sent messages out to their

colleagues.” (Doc. 63-1 at 41). He indicated that he was “looking for all records,

including Aol’s investigation into the illegal hacking and impersonating of [his]

email address and the FBI’s investigation into the matter.” (Id.). On October 4,

2016, the FBI advised Mr. Carpezzi that his letter “did not contain sufficient

information to conduct an accurate search of the Central Records System.” (Id. at

44). That letter provided several blanks for Mr. Carpezzi to fill in and a space for

Mr. Carpezzi to provide any additional information that he thought would assist the

FBI with their search for records. (Id.). On October 24, 2016, Mr. Carpezzi

returned the letter, providing the requested information and certain additional

information. (Id. at 48). He also requested a transcription of the January 2016

conversation at FBI Headquarters. (Id. at 49).

On December 5, 2016, the FBI sent a letter to Mr. Carpezzi indicating, in

relevant part, that Mr. Carpezzi’s request was received at FBI Headquarters and

that they were searching the indices to the Central Records System (“CRS”) for

information responsive to the request. (Id. at 52). In a letter dated January 9,

2017, the FBI notified Mr. Carpezzi that it had reviewed and was releasing two

pages with certain information withheld pursuant to FOIA exemptions (b)(6),

(b)(7)(C), and (b)(7)(E). (Id. at 55).

On January 16, 2017, Mr. Carpezzi filed an administrative appeal with U.S.

Department of Justice, Office of Information Policy (OIP), stating that the FBI’s

response “was so vague it shows they chose not to disclose the information

specifically requested.” (Id. at 59).

On January 31, 2017, OIP sent Mr. Carpezzi a letter, stating that they

construed his appeal as “limited to the adequacy of the FBI’s search for responsive

records” and affirmed the FBI’s action on his request. (Id. at 70). OIP also advised

Mr. Carpezzi of his right to “file a lawsuit in federal district court.” (Id. at 71).

On May 18, 2017, the FBI sent Mr. Carpezzi a letter indicating that his

complaint, which was directed to the DOJ, Office of the Inspector General, was

referred to the Internal Investigations Section (IIS), Inspection Division (INSD),

FBI, and explained that the IIS/INSD is “the FBI entity responsible for

investigating allegations of misconduct or criminal activity on the part of FBI

employees.” (Doc. 65-4 at 2). The letter further informed Mr. Carpezzi that the

IIS/INSD reviewed the matter and determined that it does not warrant the opening

of an administrative inquiry. (Id.)

On January 15, 2018, Mr. Carpezzi wrote a letter to the FBI Director,

alleging the impersonation of his email address and his inability to hire an

attorney. (Doc. 65-5 at 2). And on June 11, 2019, Mr. Carpezzi wrote a similar

letter to the then-Attorney General. (Doc. 65-6 at 2). Mr. Carpezzi received a

response letter on June 11, 2019, letting him know that his letter was received and

would be reviewed. (Id. at 3).

On January 6, 2020, Mr. Carpezzi filed a complaint styled as Carpezzi v.

Untied States of America – U.S. Postal Service. See No. 2:20-cv-00005-JLB-MRM,

Doc. 1 (M.D. Fla. Jan. 6, 2020). He filed an amended complaint on June 22, 2020, a

second amended complaint on March 5, 2021, and a third amended complaint on

April 4, 2021 (2:20-cv-00005 at Docs. 16, 47, 57). The final amended complaint in

that case, which alleged that the United States Postal Service was stealing or

refusing to deliver Mr. Carpezzi’s mail for political reasons, was dismissed without

prejudice for lack of subject matter jurisdiction on October 26, 2021. (See 2:20-cv-

00005 at Doc. 64).

On September 30, 2020, the FBI sent another letter to Mr. Carpezzi,

responding to his FOIA request and civil action. (Doc. 49-1 at 2; Doc. 63-1 at 73).

The letter stated that the FBI’s Record/Information Dissemination Section (“RIDS”)

conducted an additional search for records and identified “190” files, which are

FOIA administrative files, that were potentially responsive to Mr. Carpezzi’s

request. (Doc. 49-1 at 2; Doc. 63-1 at 73). The letter further stated that the FBI

“does not routinely process ‘190’ files, unless processing is specifically requested”

and instructed Mr. Carpezzi to notify RIDS in writing within thirty days from the

date of the letter if he desired to have these files processed. (Doc. 49-1 at 2; Doc. 63-

1 at 73). The letter specified that if RIDS did not hear from Mr. Carpezzi, it would

not process the records. (Doc. 49-1 at 2; Doc. 63-1 at 73).

Finally, on December 4, 2020, the FBI sent a letter to Mr. Carpezzi, stating

that because the FBI did not receive a response to their September 30, 2020 letter,

it was enclosing only the FBI’s initial release to the FOIA request, with Vaughn

coding and Bates numbers, along with an Explanation of Exemptions. (Doc. 63-1 at

75).

On March 6, 2021, Mr. Carpezzi filed the present lawsuit. (Doc. 1). Mr.

Carpezzi filed an amended complaint on October 8, 2021. (Doc. 23). After this

Court entered an order (Doc. 48) granting the DOJ’s motion to dismiss (Doc. 24),

Mr. Carpezzi filed a second amended complaint on April 4, 2022 (Doc. 49). The DOJ

filed its answer on April 18, 2022. (Doc. 50).

Mr. Carpezzi claims that the DOJ is in violation of FOIA. (Doc. 49 at ¶ 6).

Mr. Carpezzi further alleges that he is being irreparably harmed because someone

(allegedly a “state sponsored actor”) illegally impersonated his AOL email address,

rccarpezzi@aol.com. (Id. at ¶ 7).

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the movant can show that there is

no genuine issue of material fact and the movant is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a). “A district court must grant a motion for summary

judgment only if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law.” Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292,

1299 (11th Cir. 2018). An issue is “genuine” if a reasonable trier of fact, viewing all

of the record evidence, could rationally find in favor of the nonmoving party in light

of his burden of proof. Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014).

And a fact is “material” if, “under the applicable substantive law, it might affect the

outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60

(11th Cir. 2004). “[W]here the material facts are undisputed and do not support a

reasonable inference in favor of the non-movant, summary judgment may be

properly granted as a matter of law.” DA Realty Holdings, LLC v. Tennessee Land

Consultants, LLC, 631 F. App’x 817, 820 (11th Cir. 2015).

The Eleventh Circuit has found that “[g]enerally, FOIA cases should be

handled on motions for summary judgment, once the documents in issue are

properly identified.” Miccosukee Tribe of Indians of Fla. v. U.S., 516 F.3d 1235,

1243 (11th Cir. 2008) (quoting Miscavige v. I.R.S., 2 F.3d 366, 369 (11th Cir. 1993)).

“[I]n FOIA litigation, an agency has the burden of proving that it properly invoked

any FOIA exemptions when it decided to withhold information.” Id. at 1258 (citing

Ely v. F.B.I., 781 F.2d 1487, 1489–90 (11th Cir. 1986)). “To prevail on a FOIA

motion for summary judgment, ‘the defending agency must prove that each

document that falls within the class requested either has been produced, is

unidentifiable, or is wholly exempt from the Act’s inspection requirements.’” Hooker

v. Dep’t of Veterans Affs., No. 8:22-cv-956-CEH-MRM, 2023 WL 1929701, at *4

(M.D. Fla. Feb. 10, 2023) (quoting Goland v. Cent. Intel. Agency, 607 F.2d 339, 352

(D.C. Cir. 1978)).

ANALYSIS

The FOIA requires government agencies to disclose documents requested by

members of the public. See 5 U.S.C. § 552(a)(3)(A). “The basic purpose of FOIA is

to ensure an informed citizenry, vital to the functioning of a democratic society,

needed to check against corruption and to hold the governors accountable to the

governed.” Hawkins v. U.S. Dep’t of Lab., No. 3:06-cv-00269-J-32TEM, 2005 WL

2063811, at *1 (M.D. Fla. 2005) (quoting Nat’l Lab. Rels. Bd. v. Robbins Tire &

Rubber Co., 437 U.S. 214, 242 (1978)). But “FOIA disclosure is not without limits.

It specifies nine exemptions from its general disclosure provisions.” Id. (citing 5

U.S.C. § 552(b)). “These exemptions are designed to safeguard various public

interests against the harms that would arise from overbroad disclosure.” Id.

(citations and quotation marks omitted). In keeping with FOIA’s policy favoring

disclosure, however, FOIA’s “disclosure provisions are read broadly, its exemptions

narrowly.” Id. (citing Ely, 781 F.2d at 1489). “In a FOIA case, a district court

reviews an agency’s decision de novo and, if it finds that an exemption does not

apply, may order the agency to produce any improperly withheld document.” Id.

(citing 5 U.S.C. § 552(a)(4)(B)). The determination of whether an exemption applies

is a matter of law. Id. (citing Wickwire Gavin, P.C. v. United States Postal Serv.,

356 F.3d 588, 591 (4th Cir. 2004)).

I. The FBI’s search was reasonably calculated to uncover all responsive

documents.

The DOJ maintains that RIDS conducted searches reasonably calculated to

uncover all records that might be responsive to Mr. Carpezzi’s request through the

CRS. (Doc. 63 at 7). “To establish the adequacy of a search for responsive

documents, a government agency must show beyond a material doubt that it has

conducted a search reasonably calculated to uncover all relevant documents.”

Broward Bulldog, Inc. v. U.S. Dep’t of Justice, 939 F.3d 1164, 1176 (11th Cir. 2019)

(quotation marks and citations omitted). The agency may meet its burden by

“producing affidavits of responsible officials so long as the affidavits are relatively

detailed, nonconclusory, and submitted in good faith.” Id. (quotation marks and

citations omitted). Once the agency satisfies that burden, “then the burden shifts to

the requester to rebut the agency’s evidence by showing that the search was not

reasonable or was not conducted in good faith.” Id. (quotation marks and citations

omitted). “Because the standard is one of reasonableness, the Act does not require

an agency to exhaust all files which conceivably could contain relevant

information.” Id. (quotation marks and citations omitted). Thus, “a requester

cannot rebut a showing of an adequate search by arguing that he received only a

subset of the documents that he thought existed.” Id.

The Department of Justice satisfied its burden by submitting the Declaration

of Michael G. Seidel, who is the Chief of RIDS, is familiar with the procedures

followed by the FBI in responding to FOIA requests, and was aware of the FBI’s

handling of Mr. Carpezzi’s FOIA request. (Doc. 63-1 at 2–3). The Court finds that

Mr. Seidel’s declaration was “relatively detailed, nonconclusory, and submitted in

good faith.” See Broward Bulldog, Inc., 939 F.3d at 1176.

Mr. Seidel described the CRS as an “extensive system of records consisting of

applicant, investigative, intelligence, personnel, administrative, and general files

compiled and maintained by the FBI in the course of fulfilling its mission and

integrated functions . . . .” (Doc. 63-1 at 7). He further explained that the CRS is

“indexed in a manner which meets the FBI’s investigative needs and priorities, and

allows FBI personnel to reasonably and adequately locate pertinent files in the

performance of their law enforcement duties.” (Id. at 8). He also described

Automated Case Support (“ACS”), which was an electronic, integrated case

management system designed to enable the FBI to locate, retrieve, and maintain

information in its files and the Universal Index (“UNI”). (Id. at 9). He explained

that the UNI was the automated index of the CRS searchable via ACS that provided

all offices of the FBI with a centralized, electronic means of indexing pertinent

investigative information into FBI files for future retrieval via index searching.

(Id.). Mr. Seidel explained that on August 1, 2018, the ACS case management

system was decommissioned and ACS data was migrated into Sentinel (which

became effective FBI-wide on July 1, 2012). (Id. at 10). Sentinel is the FBI’s next

generation case management system and retained the index search methodology

and function whereby the CRS is queried via Sentinel for pertinent index main or

reference entries in case files. (Id.).

Mr. Seidel described RIDS’s general search efforts when Mr. Carpezzi’s FOIA

request was submitted, which included conducting an index search via ACS/UNI

and, when records were reasonably expected to have been created on or after July 1,

2012, RIDS conducted an index search of Sentinel records to ensure that all

relevant data indexed after the implementation of Sentinel was captured. (Id. at

10–11). He then explained that a FOIA analyst must consider potentially

responsive indexed records against the specific parameters of individual requests,

and responsiveness determinations are made once indexed records are gathered,

analyzed, and sorted by FOIA analysts who then make informed “coping decisions

to determine the total pool of records responsive to an individual request.” (Id. at

11).

Following that, Mr. Seidel explained the adequacy of the search for Mr.

Carpezzi’s request. He explained:

In response to Plaintiff’s request, RIDS conducted a CRS

index search for potentially responsive records employing

the ACS/UNI and the Sentinel automated indices by

entering the following search terms: Carpezzi, Robert,

Christopher; Carpezzi, Robert, C; Carpezzi, Robert;

Carpezzi, R, Christopher; Carpezzi, Chris; Carpezzi, R, C;

Carpezzi, Christopher; Robert Christopher Carpezzi;

Robert C Carpezzi; Robert Carpezzi; R Christopher

Carpezzi; Chris Carpezzi; R C Carpezzi; and Christopher

Carpezzi.

(Doc. 63-1 at 11–12). Mr. Seidel also explained that because Mr. Carpezzi’s request

sought information about himself, such information would reasonably be expected to

appear in the CRS via the index search methodology. (Doc. 63-1 at 12). Moreover,

Mr. Seidel explained that because Mr. Carpezzi provided no information for RIDS to

reasonably conclude that records would reside outside the CRS and there was no

indication from the information located from the CRS index search efforts that

responsive records would reside in any other FBI system or location, there was no

basis for RIDS to conclude that a search elsewhere could reasonably be expected to

locate responsive material subject to the FOIA. (Doc. 63-1 at 12).

Moreover, Mr. Carpezzi fails to rebut the DOJ’s evidence that the FBI

conducted an adequate search. Indeed, Mr. Carpezzi does not challenge the

sufficiency of the CRS or the search terms that the FBI used. Instead, Mr. Carpezzi

accuses the DOJ of “purposely chang[ing] records searched.” (Doc. 65 at 6). Mr.

Carpezzi does not provide any evidence that such activity occurred, and his bare,

unsupported speculations do not create a genuine issue of material fact. See

Gadsby v. Am. Gold Corp. of Cal., 557 F. App’x 837, 839 (11th Cir. 2014) (“We draw

all factual inference in a light most favorable to the nonmoving party. . . . But an

inference based on speculation and conjecture is not reasonable.”) (citation omitted).

Moreover, to the extent that Mr. Carpezzi requests that the FBI create a

complete transcript of his January 2016 conversation at FBI Headquarters in Dener

(see Doc. 65 at 5), the FBI is not obligated to create a transcript if one does not exist.

See Kissinger v. Reps. Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980)

(“[FOIA] does not obligate agencies to create or retain documents; it only obligates

them to provide access to those which it in fact has created and retained.”).

II. Although the DOJ met its burden of showing that the documents retrieved in

response to Mr. Carpezzi’s FOIA request could be exempted under 5 U.S.C. §

552a(j)(2), the Court will not grant summary judgment on this basis because

it is unclear whether the FBI withheld any information based on this

exemption.

5 U.S.C. § 552a(j)(2) states that the head of an agency may promulgate rules

to “exempt any system of records within the agency” (with certain exceptions) if the

system of records “maintained by an agency or component thereof which performs

as its principal function any activity pertaining to the enforcement of criminal laws,

including police efforts to prevent, control, or reduce crime or to apprehend

criminals.” The FBI has exercised that authority to exempt its Central Records

System from the individual access provisions of the Privacy Act, subject to its right

to waive the exemption where compliance does not “appear to interfere with or

adversely affect the overall law enforcement process.” See 28 C.F.R. § 16.96(a)(1).

“Records contained in CRS are exempt if they constitute law enforcement

records within the meaning of the statute. Accordingly, the FBI bears the burden of

demonstrating a law enforcement purpose for each record as to which it has claimed

exemption in the case.” Majid v. Fed. Bureau of Investigation, 245 F. Supp. 3d 63,

70 (D.D.C. 2017) (citing Doe v. Fed. Bureau of Investigation, 936 F.2d 1346, 1353

(D.C. Cir. 1991)). Records by a law enforcement agency must meet two criteria to

qualify as law enforcement records: (1) the agency’s investigatory activities giving

rise to the documents must relate to the enforcement of federal laws or to the

maintenance of national security; and (2) the nexus between the investigation and

one of the agency’s law enforcement duties must be based on “information sufficient

to support at least a colorable claim of its rationality.” Id. (citing Doe, 936 F.2d at

1353–54). “[A] reviewing court should be hesitant to second-guess a law

enforcement agency’s decision to investigate if there is a plausible basis for its

decision.” Doe, 936 F.2d at 1354–55. Once an agency meets both prongs of this test,

the burden shifts to the plaintiff to produce evidence that “the asserted law

enforcement rationale for an investigation was in fact pretextual.” Majid, 245 F.

Supp. 3d at 70 (citing Doe, 936 F.2d at 1354). “If the plaintiff fails to rebut the

showing of law enforcement purpose, the agency is entitled to summary judgment.”

Doe, 936 F.2d at 1355.

Mr. Seidel’s declaration indicates that the investigatory records at issue were

identified through searches of the CRS and that these records were “compiled

during the FBI’s fulfillment of its law enforcement duties.” (Doc. 63-1 at 13).

Specifically, RIDS identified two documents: (1) an FBI Complaint form (“FD-71”)

dated January 25, 2016, documenting submission of a complaint by Mr. Carpezzi

alleging criminal activity; and (2) a letter from FBI personnel to state law

enforcement in response to a request for information as part of an investigation.

(Doc. 63-1 at 13–14). Mr. Seidel explains that the FBI creates an FD-71 during the

submission of a complaint of reported criminal activity, and therefore, the FD-71

was compiled to capture Mr. Carpezzi’s allegation of illegal activity and thus

compiled for law enforcement purposes. (Doc. 63-1 at 13). As to the letter in

response to the request for information, Mr. Seidel explains that the FBI responds

to official requests for information from law enforcement agencies “as part of its

duty to assist law enforcement.” (Doc. 63-1 at 14). The Court finds that the FBI’s

investigatory activities giving rise to both the FD-71 and the letter to state law

enforcement are related to the enforcement of federal laws and that the nexus

between the FBI’s investigation and its law enforcement duties is based on

information sufficient to support at least a colorable claim of their rationality—the

investigation related to the FD-71 was based on Mr. Carpezzi’s own complaint, and

the letter to state law enforcement was assisting state authorities in an ongoing

investigation. Accordingly, the DOJ meets its burden of demonstrating that these

documents fell under 5 U.S.C. § 552a(j)(2). See Majid, 245 F. Supp. 3d at 70

(explaining that “[r]ecords contained in CRS are exempt if they constitute law

enforcement records within the meaning of the statute.”).

Conversely, Mr. Carpezzi did not meet his burden of demonstrating that the

asserted law enforcement rationale for an investigation was pretextual. Indeed, Mr.

Carpezzi’s only argument on this point is that the “FBI had no right to consider any

claim under the Privacy Act” and that the DOJ “has had over 17 years to

manufacture evidence and file their own lawsuit against Plaintiff since placing him

on a target list in the early 2000’s.” (Doc. 65 at 5).

Notwithstanding this Court’s finding that the documents could have been

withheld in their entirety under the Privacy Act, Mr. Seidel confirmed that the FBI

still “reviewed the records under the access provisions of the FOIA to achieve

maximum disclosure.” (Doc. 63-1 at 13–14). Both the FD-71 and the letter to state

law enforcement, with redactions, are appended to Mr. Seidel’s declaration, as

redacted. Accordingly, because the FBI does not appear to have withheld any

information based on this exemption, the Court will not grant summary judgment

on this basis alone.

III. The FBI properly redacted names of law enforcement in the records pursuant

to FOIA Exemption 7(C).

5 U.S.C. § 552(b) contains various exemptions to FOIA. Two of these

exemptions are for “personnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of personal privacy,” 5

U.S.C. § 552(b)(6) (referred to as “Exemption 6”), and “records or information

compiled for law enforcement purposes . . . to the extent that the production of such

law enforcement records or information . . . could reasonably be expected to

constitute an unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C)

(referred to as “Exemption 7(C)’). “Exemption 6 has been held to cover all

information applying to a particular individual.” Stahlman v. U.S. Dep't of Just.,

No. 6:20-cv-733-WWB-EJK, 2021 WL 3176968, at *5 (M.D. Fla. May 21, 2021)

(citations and quotation marks omitted). “Exemption 7(C) protects a broader range

of records.” Id. (citations and quotation marks omitted). “Both Exemption 6 and

Exemption 7(C) require a balancing of the privacy interests of the individuals in not

having the records disclosed against the asserted public interest in disclosure.” Id.

(citations and quotation marks omitted). Importantly, “[w]here a court finds that a

withholding of documents meets the standard of Exception 7(C), it need not address

the more stringent ‘clearly unwarranted’ standard of Exemption 6.” Id. (citations

and quotation marks omitted). Accordingly, because the Court finds that the FBI’s

redactions are properly exempted pursuant to Exemption 7(C), the Court shall not

address the Exemption 6 standard.

Mr. Seidel provides the following summary of information that the FBI

withheld pursuant to Exemptions 6 and 7(C):

LO ee) ee ee OL Oe we Orew edi.

Exemptions 6 & 7(C Unwarranted/Clearly Unwarranted Invasion of Personal Privacy

b)(6)-1 and (b)(7)(C)-1 | Names of FBI Special Agents and Name of a Chief Division Counsel

(Doc. 63-1 at 15).

1. The records at issue were compiled for law enforcement purposes.

Exemption 7(C) requires the agency to show that the records at issue were

16

compiled for law enforcement purposes. See 5 U.S.C. § 552(b)(7)(C). As described in

Section I above, this Court has already found that both the FD-71 and the letter

between law enforcement, in response to a state law enforcement agency’s request

for information were compiled for a law enforcement purpose. Mr. Carpezzi,

however, cites two cases in support of his argument that the documents were not

compiled for law enforcement purposes. Each of these cases is readily

distinguishable.

First, in Rural Housing Alliance v. United States Department of Agriculture,

398 F.2d 73, 80–81 (D.C. Cir. 1974), the Court analyzed the application of

Exemption 7 to an internal investigation by the USDA to determine whether

certain staff had engaged in racial discrimination and then found that

“investigatory files compiled for law enforcement purposes” must be given the same

meaning, whether the subject of the files is a government employee or an ordinary

private citizen. But the subject of the two files here are not internal audits by FBI

staff, making that case inapposite. Second, in American Civil Liberties Union of

Northern California v. Federal Bureau of Investigation, No. C 12-03728 SI, 2014 WL

4629110, at *6 (N.D. Cal. Sept. 16, 2014), the Court found that although a

legitimate law enforcement purpose was established, the FBI failed to establish a

nexus between the documents at issue and that purpose. There, the only factual

information that the FBI provided was that the investigation involved “potential

criminal activity by protestors involved with the Occupy movement.” Am. Civ.

Liberties Union of N. Cal., 2014 WL 4629110, at *6 (citations and quotation marks

omitted). But, here, Mr. Seidel provides much more detail than just “potential

criminal activity”—he states that the complaint form “was compiled to document an

allegation of criminal activity filed by the Plaintiff” and that the letter to the state

law enforcement agency was “in response to a state law enforcement agency’s

request for information as part of an investigation.” (Doc. 63-1 at 16).

The Court finds that the DOJ has successfully established that the two

records at issue were compiled for law enforcement purposes, such that they meet

the threshold for Exemption 7(C).

ii. The records were properly redacted pursuant to Exemption 7(C).

Mr. Seidel explains that assignments of Special Agents to particular

investigations are not by choice, that publicity arising from a particular

investigation “may seriously prejudice their effectiveness in conducting

investigations and in performing day-to-day work,” that the publicity associated

with the release of a Special Agent’s identity in connection with a particular

investigation “could trigger hostility” towards the Special Agent, and that people

targeted in investigations “could seek to inflict violence on [a Special Agent] based

on his or her participation in the investigation.” (Doc. 63-1 at 19). On the other

hand, as Mr. Seidel points out, disclosure of the Special Agents’ identities would

serve no public interest because “their identities would not, themselves,

significantly increase the public’s understanding of the FBI’s operations and

activities.” (Id.). The Court agrees.

With respect to the name of a Chief Division Counsel, Mr. Seidel explains

that, similar to FBI Special Agents, the Chief Division Counsel “could be targeted

for reprisal based on his/her involvement in a specific investigation.” (Id. at 20).

Moreover, this CDC “was and possibly still is, in a position of access to information

regarding official law enforcement investigations, and therefore could become a

target of inquiries for unauthorized access to investigations if his/her identity were

released.” (Id.). Mr. Seidel avers that similarly to the release of Special Agents’

names, no public interest would be served by disclosing the identity of this Chief

Division Counsel to the public, because their identity would not increase the public’s

understanding of the FBI’s operations and activities. (Id.). The Court, again,

agrees.

Finally, with respect to the name of a State Law Enforcement Employee, Mr.

Seidel explains that the employee was “acting in their official capacity and aided the

FBI in the law enforcement investigative activities reflected in the records

responsive to Plaintiff’s request,” and that the rationale for protecting their identity

is similar to the rationale for protecting the identities of Special Agents and Chief

Division Counsel. (Id.). Thus, the Court finds that the interest in protecting the

State Law Enforcement Employee outweighs any public interest that might be

served by release of the identity because releasing the identity would not increase

the public’s understanding of the FBI’s operations and activities. (Id. at 20–21).

Balancing the private interest involved against the public interest (ensuring

an informed citizenry, checking against corruption, and holding the government

accountable, see Hawkins, 2005 WL 2063811, at *1), the Court finds that the

privacy interests of the identities of the FBI Special Agents, the Chief Division

Counsel, and the name of the State Law Enforcement Employee outweigh any

purported public interest that would be served by releasing their names.

Accordingly, requiring the FBI to release such names would constitute an

unwarranted invasion of personal privacy under Exemption 7(C). See Local 32B-

32J, Serv. Emps. Intern. Union, AFL-CIO v. Gen. Servs. Admin., No. 97 Civ. 8509

(LMM), 1998 WL 726000, at *9 (S.D.N.Y. Oct. 15, 1998) (“Courts have consistently

recognized the privacy interests of persons—both witnesses and investigate

agents—identified in agency documents. . . . [D]isclosure of the names of the law

enforcement personnel involved in an investigation could . . . lead to harassment

and could interfere with the performance of their duties.”) (citations omitted).

IV. The FBI properly redacted an FBI sensitive investigation file number and an

FBI database identifier under Exemption 7(E).

Under 5 U.S.C. § 552(b)(7)(E), FOIA does not apply to “records or information

compiled for law enforcement purposes” to the extent that production of such

information “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.” The phrase “if such disclosure could reasonably be

expected to risk circumvention of the law” has been interpreted broadly. Broward

Bulldog, Inc. v. U.S. Dep’t of Justice, No. 12-61735-CIV-ZLOCH, 2019 WL

13178390, at *30 (S.D. Fla. Aug. 22, 2019). “Exemption 7(E) protects information

that would reveal facts about techniques or their usefulness that are not generally

known to the public, as well as other information when disclosure could reduce

effectiveness of such techniques.” Broward Bulldog, 939 F.3d at 1192. “An agency

must demonstrate only that release of a document might increase the risk that a

law will be violated or that past violators will escape legal consequences.” Jeanty v.

F.B.I., No. 13-20776-CIV, 2014 WL 4206700, at *7 (S.D. Fla. Aug. 25, 2014) (citing

Pub. Emps. For Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water

Comm’n, 740 F.3d 195, 2016 (D.C. Cir. 2014)) (quotation marks omitted).

The FBI cited Exemption 7(E) in supports of its redaction of two types of

information from the FD-71 complaint: FBI sensitive investigation file numbers and

FBI database identifiers. (Doc. 63-1 at 21–24).

With respect to the file number, Mr. Seidel explains that FBI file numbers

contain three components: (1) the CRS file classification number; (2) the

abbreviation of the FBI office of origin (“OO”) initiating the file; and (3) the assigned

individual case file number for that particular subject matter. (Doc. 63-1 at 7). Mr.

Seidel further explains that “[m]any of the FBI’s classification numbers are known

to the public, which makes disclosure of the non-public classification numbers even

more telling.” (Doc. 63-1 at 21–22). Additionally, according to Mr. Seidel, “releasing

non-public FBI file classification numbers would reveal critical information about

non-public investigative techniques and procedures, and provide criminals and

foreign adversaries with the ability to discern the types of highly sensitive

investigative strategies the FBI pursues whenever such file classification numbers

are present.” (Doc. 63-1 at 22). The second component, the two-letter office of origin

code also “provide[s] critical information about where and how the FBI detected

particular criminal behavior or national security threats, and reveal key pieces

about the FBI’s non-public investigations or intelligence or evidence gathering

sources and methods.” (Id.). Moreover, “[r]evealing this information could also

provide significant information about the FBI’s failure to detect certain types of

criminal behavior.” (Id.). Finally, with respect to the assigned string of numbers

for the particular subject matter under investigation, Mr. Seidel explains that

“[r]eleasing these singular file numbers would provide criminals and foreign

adversaries with a tracking mechanism by which they can place particular files, and

thus, investigations, within the context of larger FBI investigate efforts” and,

finally, that releasing all three components “would provide criminal and foreign

adversaries with an idea of how FBI investigations may be interrelated and,

potentially, when, why, and how the FBI pursues or pursued different

investigations.” (Id. at 22–23).

Mr. Carpezzi’s primary argument against summary judgment with respect to

the Exemption 7(E) redactions is that the FBI or the DOJ “purchased American

Online Source Codes allowing full access to spy on American emails before Edward

Snowden released information on the Prism program” and that the government

does not have “cart blanche to withhold ‘already disclosed law enforcement

techniques’ on the basis of their relation to an investigation.” (Doc. 65 at 9–10).

The Court does not see a connection between any AOL investigation and the

redacted file numbers. The Court finds that the DOJ has made an adequate

showing to support the redaction of this information. See Broward Bulldog, Inc.,

2019 WL 13178390, at *31 (finding that defendants made an adequate showing

where their reasoning for redacting file numbers included that file numbering

“identifies interests or priority” and provides information which could allow

suspects to “avoid detection, apprehension, or create alibis for suspected activities”).

With respect to the database identifier, Mr. Seidel indicates that revealing

the identity of this database (1) “would give criminal insight into the available tools

and resources the FBI uses to conduct criminal and national security investigation,”

(2) “would reveal the nature of its utility to FBI investigators,” and (3) “could

jeopardize the FBI’s investigative function by revealing exactly where the FBI

stores and from where it obtains valuable investigative data.” (Doc. 63-1 at 23–24).

For similar reasons as with the file numbers, the Court finds that the DOJ has

made an adequate showing to support the redaction of this information. See Kowal

v. U.S. Dep’t of Just., No. CV 18-2798 (TJK), 2021 WL 4476746, at *6 (D.D.C. Sept.

30, 2021) (finding that database identifiers were properly withheld because “[t]his

kind of technical information is regularly withheld under Exemption 7(E), and the

FBI has sufficiently explained the logic that justifies withholding it here”).

Consequently, the sensitive investigation file number and the database identifier

were properly redacted from the disclosed documents and withheld from disclosure.

-Remainder of page intentionally left blank-

CONCLUSION

For the foregoing reasons, the DOJ’s Motion for Summary Judgment (Doc.

63) is GRANTED. The Clerk of Court shall enter judgment accordingly, terminate

all other pending motions and deadlines and close the case.

ORDERED at Fort Myers, Florida on March 27, 2023.

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

24