The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RICHARD LUTHMANN,
Plaintiff,
v. Case No: 2:21-cv-716-JES-NPM
THE FEDERAL BUREAU OF
INVESTIGATION and UNITED
STATES DEPARTMENT OF
JUSTICE,
Defendants.
OPINION AND ORDER
The First Amended Complaint (Doc. #34) seeks agency records
from the Federal Bureau of Investigation (the FBI) and the United
States Department of Justice (DOJ) pursuant to the Freedom of
Information Act (FOIA). Defendants filed a Motion for Summary
Judgment (Doc. #64) on February 1, 2024. The Court directed
plaintiff to file a response, however the deadline to do so has
expired and no response has been filed and no extension of time
sought. (Doc. #65.)
I.
Plaintiff Richard Luthmann (plaintiff or Luthmann) sought the
following records pursuant to the FOIA:
All materials in any way related to the above-
referenced RICHARD LUTHMANN, defendant in the
matter of United States v. Luthmann, 17-CR-
664 (E.D.N.Y.). This includes all materials
related in any way into the investigation in
the above-referenced matter as well as any
evidence and/or notes collected at interviews
with third-parties (including but not limited
to Guy Cardinale and Robert Castro) related to
the above-referenced matter.
(Doc. #34-2 at 2.) The administrative history of Luthmann’s FOIA
request is set forth in detail in the Second Declaration of Michael
G. Seidel (Doc. #64-1 at ¶¶ 4-22) and adopted by the Court. The
FBI consulted with the DOJ, Criminal Division (CRM), the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF), the Department of
Commerce (Commerce), and the DOJ, Executive Office for United
States Attorneys (EOUSA). The FBI then released some, but not
all, of the requested records. (Doc. #34-4, Exh. D.) Luthmann
filed this lawsuit to compel disclosure of the remaining records.
Defendants identified 4,641 pages as responsive to the
request. The FBI released 170 pages in full and 657 pages in part
and withheld 3,814 pages in full. (Doc. #64-1 at ¶ 4.) Of the
records withheld in full, 234 pages were duplicates of other
documents produced and 244 are sealed by court order. Defendants
assert that the remaining 3,336 pages withheld in full, along with
the 657 pages withheld in part, were properly withheld. (Doc. #64
at ¶¶ 7-8.) Defendants seek summary judgment to that effect.
Defendants have submitted the following documentation in
support of their motion for summary judgment: (1) a 72-page Second
Declaration of Michael G. Seidel (Doc. #64-1), Section Chief of
the Record/Information Dissemination Section (RIDS), Information
Management Division (IMD), FBI; (2) a 5-page Declaration of Grace
Agyekum (Doc. #64-2), the FOIA Officer for the Bureau of Industry
and Security (BIA), a component of the Department of Commerce
(Commerce); (3) a 3-page Declaration of Ginae Barnett (Doc. #64-
3), Acting Chief, Information Privacy and Governance Division
(IPG) at the ATF; (4) an 11-page Declaration of Nicole Moore (Doc.
#64-4), an Attorney-Advisor in the Freedom of Information
Act/Privacy Act Office (FOIA/PA), a part of the EOUSA; (5) an 18-
page Declaration of Marjorie F. Cole (Doc. #64-5), a trial attorney
in the FOIA/PA unit of the Office of Enforcement Operations (OEO)
in the Criminal Division (CRM) of the DOJ; (6) a 133-page Exemption
Application Index (Vaughn Index) (Doc. #64-6); and (7) a 279-page
exhibit containing copies of various relevant documents (Doc. #64-
7). The Court refers to these items collectively as the summary
judgment record.
In FOIA cases, courts afford a presumption of good faith to
the unchallenged facts asserted in sworn declarations of
government officials. Am. Oversight v. United States Dep’t of
Justice, 45 F.4th 579, 583 (2d Cir. 2022). Thus, “[a]n agency can
carry this burden at the summary judgment stage through sworn
declarations that are factually uncontroverted and sufficiently
detailed to have the exemption appear ‘logical and plausible.’”
Id. at 587. All the Declarations filed by defendants are from
well-qualified and knowledgeable persons and are sufficiently
detailed to establish the exemptions at issue in this case.
For the reasons set forth below, the Court finds defendants
have established they are entitled to summary judgment in their
favor as to each of the exemptions which have been asserted.
II.
“The purpose of FOIA is to encourage public disclosure of
information so citizens may understand what their government is
doing. Accordingly, the records ... are presumed to be subject to
disclosure unless DOJ affirmatively establishes that the requested
records fall into one of FOIA’s exemptions.” Off. of Cap.
Collateral Couns., N. Region of Fla. ex rel. Mordenti v. Dep't of
Just., 331 F.3d 799, 802 (11th Cir. 2003) (citing Chilivis v. SEC,
673 F.2d 1205, 1210–11 (11th Cir. 1982)). “Once a person has shown
that the government has records that should be produced under the
FOIA, absent an exemption, the burden of proof is on the government
to establish that a given document is exempt from disclosure.”
Miscavige v. I.R.S., 2 F.3d 366, 367 (11th Cir. 1993) (citing
United States Dep’t of Justice v. Reporters Committee for Freedom
of the Press, 489 U.S. 749, 755 (1989)). “‘FOIA cases should be
handled on motions for summary judgment, once the documents in
issue are properly identified’ and after the government has
supplied affidavits or other information describing the
documents.” Sikes v. United States Dep't of Navy, 896 F.3d 1227,
1239 (11th Cir. 2018) (quoting Miscavige, 2 F.3d at 369).
Summary judgment is proper where the evidence “shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “A genuine issue of material fact exists ‘if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.’” Edmondson v. Velvet Lifestyles, LLC, 43 F.4th
1153, 1159 (11th Cir. 2022) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). “If there is not sufficient
evidence for a jury to find for the non-moving party, or ‘if the
evidence is merely colorable,’ or if it ‘is not significantly
probative,’ then summary judgment is appropriate.” Id. (quoting
Anderson, 477 U.S. at 249-50).
The movant bears the initial burden of demonstrating an
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). “‘Once the movant adequately
supports its motion, the burden shifts to the nonmoving party to
show that specific facts exist that raise a genuine issue for
trial.’” James River Ins. Co. v. Ultratec Special Effects Inc.,
22 F.4th 1246, 1251 (11th Cir. 2022) (quoting Dietz v. Smithkline
Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010)). In ruling on
a motion for summary judgment, the Court views all evidence and
draws all reasonable inferences in favor of the non-moving party
to the extent supportable by the record. Scott v. Harris, 550 U.S.
372, 380 (2007); Baxter v. Roberts, 54 F.4th 1241, 1253 (11th Cir.
2022).
When a party fails to respond to a motion for summary
judgment, a court may properly construe the motion as unopposed
pursuant to its local rules. Simon v. Kroger Co., 743 F.2d 1544,
1547 (11th Cir. 1984); Dunlap v. Transamerica Occidental Life Ins.
Co., 858 F.2d 629, 632 (11th Cir. 1988). Nonetheless, courts
“cannot base the entry of summary judgment on the mere fact that
the motion was unopposed, but, rather, must consider the merits of
the motion.” United States v. One Piece of Real Prop. Located at
5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir.
2004); Dunlap 858 F.2d at 632. “Even in an unopposed motion, the
moving party still bears the burden of identifying ‘the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes
demonstrates the absence of a genuine issue of material fact.”
Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009)
(quoting Celotex Corp., 477 U.S. at 323). Thus, while movant’s
facts can be “deemed admitted,” courts “must still review the
movant’s citations to the record to determine if there is, indeed,
no genuine issue of material fact.” Id. (citing Reese v.
Herbert, 527 F.3d 1253, 1269 (11th Cir. 2008)).
III.
1
Defendants first discuss their partial privacy Glomar
response, then the adequacy of the search, the applicable
exceptions under the Privacy Act, the several FOIA exemptions which
they assert justify their non-disclosures, foreseeable harm, and
the segregability of records. (Doc. #64.) The Court discusses
each in turn.
A. Glomar Response
Defendants assert a partial privacy Glomar response to the
FOIA request regarding the two identified third-party individuals,
Guy Cardinale and Robert Castro. This response was explained in
detail in the Second Declaration of Michael G. Seidel (Doc. #64-1
at ¶¶ 23-30.) Defendants argue that to acknowledge the existence
of such records would reveal personal information about these
third-parties that Exemption 6 (5 U.S.C. § 552(b)(6)) and Exemption
7(C) (5 U.S.C. § 552(b)(7)(C)) are intended to protect. Defendants
1
“A Glomar response neither confirms nor denies the existence
of the documents sought in the FOIA request. The term has its
origin in a case involving a FOIA request for information on the
GLOMAR EXPLORER submarine-retrieval ship.” Office of the Capital
Collateral Counsel, 331 F.3d at 801 n.3.
further note that no third-party waivers or proof of death have
been provided by plaintiff.2 (Docs. #64, pp. 4-6; #64-1 at ¶ 27-
29.)
“To claim a FOIA exemption, an agency ordinarily must
‘acknowledge the existence of information responsive to a FOIA
request and provide specific, non-conclusory justifications for
withholding that information.’” Knight First Amend. Inst. at
Columbia Univ. v. Cent. Intel. Agency, 11 F.4th 810, 813 (D.C.
Cir. 2021) (quoting Roth v. DOJ, 642 F.3d 1161, 1178 (D.C. Cir.
2011)). Because Glomar responses are an exception to this general
rule, a Glomar response is permitted only when confirming or
denying the existence of records would itself “cause harm
cognizable under an FOIA exception.” Am. C.L. Union v. C.I.A.,
710 F.3d 422, 426 (D.C. Cir. 2013). A Glomar response is proper
“if the fact of the existence or nonexistence of agency records
falls within a FOIA exemption.” Wolf v. C.I.A., 473 F.3d 370, 374
(D.C. Cir. 2007). When a government agency issues a Glomar
response, it must “‘provide a public affidavit explaining in as
2
“Where a request for records pertains to a third party, a
requester may receive greater access by submitting either a
notarized authorization signed by that individual or a declaration
made in compliance with the requirements set forth in 28 U.S.C.
1746 by that individual authorizing disclosure of the records to
the requester, or by submitting proof that the individual is
deceased (e.g., a copy of a death certificate or an obituary).”
28 C.F.R. § 16.3(a)(4).
much detail as is possible the basis for its claim that it can be
required neither to confirm nor deny the existence of the requested
records.’” Ely v. FBI, 781 F.2d 1487, 1493 (11th Cir. 1986)
(citation omitted).
Mr. Seidel’s Second Declaration (Doc. #64-1) states that the
FBI has a longstanding policy to neither confirm nor deny the
existence or non-existence of law enforcement records regarding a
third party (id. at ¶ 27); that confirmation of the existence of
such records could reasonably be expected to subject the third
parties to harassment and stigmatization; and that plaintiff
failed to articulate any public interest in such disclosure (id.
at ¶ 29). Defendants further assert that FOIA Exemption 6 and
7(C) apply to any third-party records that may or may not exist.
(Doc. #64, pp. 22-23.)
After careful consideration of the summary judgment record,
the Court finds that Mr. Seidel’s Second Declaration is sufficient,
and that the Glomar response was appropriate. Additionally, the
Court finds that FOIA Exception 6 and Exception 7(C) (as discussed
in more detail later) apply to any requested records concerning
the two third-party individuals if such records exist.
Accordingly, the Court finds that the partial Glomar response was
proper as to records which may or may not exist related to Guy
Cardinale and Robert Castro.
B. Adequacy of Search
Defendants concede that they are required to establish the
adequacy of their search for the requested records. (Doc. #64, p.
6.) As the Eleventh Circuit has stated:
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. [] The agency
may meet this burden by producing affidavits
of responsible officials so long as the
affidavits are relatively detailed,
nonconclusory, and submitted in good faith. []
If the agency satisfies this 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.
Broward Bulldog, Inc. v. U.S. Dep't of Justice, 939 F.3d 1164,
1176 (11th Cir. 2019) (internal quotation marks and citations
omitted). See also Transgender Law Ctr. v. Immigration & Customs
Enf't, 46 F.4th 771, 779-80 (9th Cir. 2022).
The Second Declaration of Michael G. Seidel sets forth in
detail the FBI’s Central Records System and the search methodology
used in responding to FOIA requests in general and Luthmann’s
request in specific. (Doc. #64-1 at ¶¶ 31-40.) In brief, the
FBI’s Central Records System (CRS) has a searchable system with
records indexed and a non-searchable portion. In response to
plaintiff’s request, the FBI searched “Luthmann, Richard” as a
search term with a cut-off date of May 17, 2021. (Doc. #64-1 at
¶¶ 31 & 39.) The FBI exempted law enforcement investigative
records compiled during the investigation of plaintiff for wire
fraud and collection of credit by extortion for the criminal case
in New York (id. at ¶ 42) and denied access to certain records
pursuant to Privacy Act Exemption (j)(2). The FBI consulted with
the CRM, ATF, Commerce, and EOUSA regarding responsive documents.
(Id. at ¶¶ 133-136.) The FBI did not withhold any reasonably
segregable, nonexempt portions of records from plaintiff. (Id. at
¶ 43.) The FBI processed the records under the FOIA to achieve
maximum disclosure. (Id.) Declarations from the representatives
of the consulted agencies confirm the consultations and the
results. (Doc. #64-4, ¶¶ 5-7; Doc. #64-5, ¶¶ 2-9.)
The Court finds that Mr. Seidel is the responsible official
and that all the Declarations submitted by defendants were
detailed, nonconclusory, and submitted in good faith, as required
by Broward Bulldog, Inc., 939 F.3d at 1176. After a careful review
of the Second Declaration of Michael G. Seidel and the other
pertinent parts of the summary judgment record, the Court finds
beyond a material doubt that defendants made searches reasonably
calculated to uncover all relevant records. Additionally, the
Court finds that plaintiff has not shown that the searches were
not reasonable or were not conducted in good faith.
C. Privacy Act Considerations
The FBI states that when an individual files a FOIA request
about himself the FBI firsts considers the request under the
Privacy Act. (Doc. #64-1 at ¶ 41.) The FBI did so in this case.
(Id. at ¶ 42.)
The Privacy Act generally gives a person the right to obtain
records related to himself unless an exemption applies. One such
exemption is Exemption (j)(2), which allows the head of a
qualifying agency such as the FBI to promulgate rules to “exempt
any system of records within the agency” (with certain exceptions)
if the system of records consists of qualifying information or
3
reports. 5 U.S.C. § 552a(j)(2). The FBI has exercised this
3
The full relevant portion of the statute states:
(j) General exemptions.—The head of any agency may
promulgate rules, in accordance with the requirements
... of sections 553(b)(1), (2), and (3), (c), and (e) of
this title, to exempt any system of records within the
agency from any part of this section except subsections
(b), (c)(1), and (2), (e)(4)(A) through (F), (e)(6),
(7), (9), (10), and (11), and (i) if the system of
records is—
. . .
(2) 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, and the activities of
prosecutors, courts, correctional, probation, pardon, or
parole authorities, and which consists of (A)
information compiled for the purpose of identifying
individual criminal offenders and alleged offenders and
authority to exempt its Central Records System (CRS) 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.” 28 C.F.R. § 16.96(a)(1).
Records contained in the CRS qualify under this exemption if
they constitute law enforcement records within the meaning of the
Privacy Act. The agency bears the burden of demonstrating that a
record is such a law enforcement record. Doe v. Fed. Bureau of
Investigation, 936 F.2d 1346, 1353 (D.C. Cir. 1991). Once an
agency does so, the burden shifts to plaintiff to produce evidence
that the asserted law enforcement rationale for an investigation
was pretextual. 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.” Id.
consisting only of identifying data and notations of
arrests, the nature and disposition of criminal charges,
sentencing, confinement, release, and parole and
probation status; (B) information compiled for the
purpose of a criminal investigation, including reports
of informants and investigators, and associated with an
identifiable individual; or (C) reports identifiable to
an individual compiled at any stage of the process of
enforcement of the criminal laws from arrest or
indictment through release from supervision.
5 U.S.C. § 552a(j)(2).
The FBI withheld records contained in the CRS which had been
compiled during the investigation and prosecution of Luthmann for
fraud and extortion. The EOUSA also withheld certain wiretap
records pursuant to this exemption. (Doc. #64-4 at ¶ 9-11.) After
careful consideration of the summary judgment record, the Court
finds that defendants have met their burden of showing that the
responsive records were law enforcement records. The systems of
records were maintained by agencies which perform as their
principal function activity pertaining to the enforcement of
criminal law, and the systems of records consist of information
compiled for one of the criminal law enforcement purposes listed
in (j)(2)(A)-(C). Additionally, the Court finds that plaintiff
has failed to produce any evidence that the responsive records
were not law enforcement records or that the law enforcement
rationale for the investigation was pretextual. Thus, the
nondisclosures were proper under the Privacy Act.
D. FOIA Exemptions
Defendants next discuss the FOIA exemptions they relied upon
in withholding various records. The Court discusses each in turn.
The FOIA codified “a strong public policy in favor of public
access to information in the possession of federal agencies.” News-
Press v. U.S. Dep't of Homeland Sec., 489 F.3d 1173, 1190 (11th
Cir. 2007) (citation and internal quotation marks omitted).
After an agency receives a request for
records, it may withhold information from
responsive documents only if it falls within
one of nine statutory exemptions. [] Because
the purpose of the Act is to encourage public
disclosure of information, responsive
documents are presumed to be subject to
disclosure unless an agency affirmatively
establishes that the requested records fall
into one of the exemptions. [] But the Act
also expressly recognizes that important
interests are served by its exemptions, and
those exemptions are as much a part of the
Act's purposes and policies as its disclosure
requirement.
Broward Bulldog, Inc., 939 F.3d at 1175 (internal quotations marks
punctuation and citations omitted).
The Second Declaration of Michael G. Seidel describes in
detail the FOIA review process utilized by defendants in
determining which documents could be withheld under the FOIA.
(Doc. #64-1 at ¶¶ 43-46, 137, 138.) Other Declarations supplement
and support the Second Declaration. Defendants rely upon the
exemptions discussed below.
(1) Exemption 3
Exemption 3 permits the agency to withhold information
“specifically exempted from disclosure by statute” if the statute
“requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue” or “establishes
particular criteria for withholding or refers to particular types
4
of matters to be withheld.” 5 U.S.C. § 552(b)(3). “Exemption 3
differs from other FOIA exemptions in that its applicability
depends less on the detailed factual contents of specific
documents” and more on “the existence of a relevant statute and
the inclusion of withheld material within that statute’s
coverage.” Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978). When
assessing whether a statute specifically exempts matters from
disclosure for purposes of Exemption 3, a court asks two questions:
“Does the statute meet Exemption 3's requirements? And does the
information that was withheld fall within that statute’s
coverage?” Newport Aeronautical Sales v. Dep't of the Air Force,
684 F.3d 160, 165 (D.C. Cir. 2012) (citing Larson v. Dep’t of
State, 565 F.3d 857, 865 (D.C. Cir. 2009)).
Defendants report that the FBI, EOUSA, CRM and Commerce
claimed Exemption 3 to withhold the following six categories of
information protected by various statutes: (1) grand jury
information; (2) pen register information; (3) wiretap
information; (4) intelligence information; (5) bank records; and
(6) export control enforcement information. (Doc. #64, pp. 9-14.)
4
The OPEN FOIA Act of 2009 established an additional
requirement that any statute “enacted after the date of enactment
of the OPEN FOIA Act of 2009, [must] specifically cite[] to this
paragraph” in order to qualify under Exemption 3. 5 U.S.C. §
552(b)(3). All the statutes relied upon by defendants (and Rule
6(e)) were enacted prior to 2009.
Relevant Declarations were submitted by Michael G. Seidel (Doc.
#64-1), Grace Agyekum (Doc. #64-2); Nicole Moore (Doc. #64-4); and
Marjorie F. Cole. (Doc. #64-5). The Court discusses the categories
of information in the same order as did defendants.
(a) Grand Jury Information
The law has long recognized that grand jury proceedings are
to be kept secret, and this secrecy principle has been codified in
Rule 6(e) of the Federal Rules of Civil Procedure. Pitch v. United
States, 953 F.3d 1226, 1232 (11th Cir. 2020) (en banc). “Rule
6(e) is exhaustive, and [] district courts do not possess inherent,
supervisory power to authorize the disclosure of grand jury records
outside of Rule 6(e)(3)’s enumerated exceptions.” Id. at 1229.
Rule 6(e) prohibits certain designated persons (including
government attorneys) from disclosing “a matter occurring before
the grand jury.” Fed. R. Crim. P. 6(e)(2)(B). “[U]nless and until
the disclosure of grand jury materials is authorized, Rule 6(e)(6)
provides that ‘records, orders, and subpoenas relating to grand-
jury proceedings must be kept under seal to the extent and as long
as necessary to prevent the unauthorized disclosure of a matter
occurring before a grand jury.’” In re Petition for Order
Directing Release of Records, 27 F.4th 84, 88 (1st Cir. 2022)
(quoting Fed. R. Crim. P. 6(e)(6)).
“[R]equests for documents related to grand jury
investigations implicate FOIA’s third exemption….” Lopez v. DOJ,
393 F.3d 1345, 1349 (D.C. Cir. 2005). Rule 6(e) qualifies as a
statute under Exemption 3 because Congress has enacted it into
positive law. Murphy v. Executive Office for U.S. Attorneys, 789
F.3d 204, 206 (D.C. Cir. 2015). Information related to a grand
jury matter may be withheld under Exemption 3 “if the disclosed
material would tend to reveal some secret aspect of the grand
jury's investigation, including the identities of witnesses….”
Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013) (internal
quotation marks and citation omitted). The Court finds that Rule
6(e) meets the requirements of Exemption 3 because nondisclosure
under the Rule involves no agency discretion.
The Second Declaration of Michael G. Seidel establishes that
otherwise responsive records which were withheld pursuant to
Exemption 3 included the names of grand jury subpoena recipients;
information identifying subpoenaed records; copies of subpoenaed
records; records of interviews and summaries related to
individuals the grand jury subpoenaed to testify; grand jury
subpoena requests and returns; and documents analyzing and
summarizing subpoenaed information. (Doc. #64-1 at ¶¶ 49-52.)
Additionally, defendants withheld the application, order, and
attachments for the Title III wiretap whose results were presented
to the grand jury. (Doc. #64-4 at ¶¶ 12-15.)
After a careful review of the summary judgment record, the
Court finds that the withheld or redacted material falls within
Rule 6(e)’s coverage and would tend to reveal secret aspects of
the grand jury's investigation, including the identities of
witnesses. Therefore, the material was properly withheld under
Exemption 3.
(b) Pen Register Information
A pen register is a device installed on a telephone line to
enable recording the telephone numbers dialed on that line, but
not the conversation. The Pen Register Act, 18 U.S.C. §§ 3121-
3126, includes a requirement that “[a]n order authorizing or
approving the installation and use of a pen register or a trap and
trace device” shall “be sealed until otherwise ordered by the
court.” 18 U.S.C. § 3123(d). This meets Exemption 3’s first
requirement. Labow v. United States Dep’t of Justice, 831 F.3d
523, 527–28 (D.C. Cir. 2016).
The next question is whether the Pen Register Act authorized
withholding of the particular information at issue in this case.
The Second Declaration of Michael G. Seidel states that the pen
register information withheld in this case included the identities
and phone numbers of those targeted by the pen register, the
location of the pen register, information gathered by the pen
register, and court documents relating to the approval of the pen
register. (Doc. #64-1 at ¶ 54.) The Declaration of Nicole Moore
states that the application, order, and attachments for the Title
III wiretaps were withheld under Exemption 3 pursuant to the Pen
Register Act. (Doc. #64-4, ¶ 17.)
The Court finds that such information falls within the
protection of the Pen Register Act. Labow v. U.S. Dep’t of
Justice, 278 F. Supp. 3d 431, 441 (D.D.C. 2017). After a careful
review of the summary judgment record, the Court finds that the
pen register information and records were properly withheld under
Exemption 3 pursuant to the Pen Register Act.
(c) Wiretap Information
The Declaration of Marjorie F. Cole describes the process by
which a wiretap order is obtained. (Doc. #64-5, ¶ 9.) Intercepted
communications obtained pursuant to the federal wiretap statute
fall “squarely within the scope” of Exemption 3. Lam Lek Chong v.
DEA, 929 F.2d 729, 733 (D.C. Cir. 1991). Exemption 3 has also
been extended to materials submitted to a court in support of a
request for a wiretap. Ewell v. U.S. Dep’t of Justice, 153 F.
Supp. 3d 294, 304–05 (D.D.C. 2016). See also House v. U.S. Dep’t
of Justice, 197 F. Supp. 3d 192, 206 (D.D.C. 2016)(same).
Defendants withheld the wiretap application, materials
included with the prosecutors’ application for court authorization
for the wiretap, the wiretap order and attachments, identities of
wiretap targets, and the information obtained by the wiretap.
(Doc. #64-1 at ¶ 56; Doc. #64-4 at ¶ 16; Doc. #64-5 at ¶ 10.)
After a careful review of the summary judgment record, the Court
finds that the wiretap records were properly withheld under
Exemption 3 and defendants have established that both prongs of
Exemption 3 have been satisfied.
(d) Intelligence Information
A portion of the National Security Act of 1947 protects
“intelligence sources and methods from unauthorized disclosure.”
50 U.S.C. § 3024(i)(1). Section 3024(i) has been broadly construed
to protect information that “relates to intelligence sources and
methods” and information which “can reasonably be expected to lead
to unauthorized disclosure of intelligence sources and methods.”
Khatchadourian v. Def. Intelligence Agency, 453 F. Supp. 3d 54, 87
(D.D.C. 2020) (citation omitted) (emphasis in original). This is
a “‘near-blanket FOIA exemption which covers public and non-public
information because ‘bits and pieces of data may aid in piecing
together bits of other information even when the individual piece
is not of obvious importance in itself.’” Id. at 88 (quoting
Leopold v. Cent. Intelligence Agency, 106 F. Supp. 3d 51, 57-58
(D.D.C. 2015)).
The Second Declaration of Michael G. Seidel states that the
FBI withheld information that would reveal intelligence sources
and methods. (Doc. #64-1 at ¶¶ 57-60.) After careful review of
the summary judgment record, the Court finds that such information
was properly withheld under Exemption 3.
(e) Bank Records
The Bank Secrecy Act (BSA) exempts “report[s] and records of
reports” collected under the BSA from disclosure under FOIA. 31
U.S.C. § 5319. The BSA is a proper basis for invoking Exemption
3. Rosenberg v. U.S. Dep’t of Immigration & Customs Enf’t, 13 F.
Supp. 3d 92, 116 n.9 (D.D.C. 2014); Yunes v. United States Dep’t
of Justice, 263 F. Supp. 3d 82, 86-87 (D.D.C. 2017) (citing
Rosenberg). Exemption 3 can extend to Financial Crimes Enforcement
Network (FinCEN) information. Ortiz v. United States Dep’t of
Justice, 67 F. Supp. 3d 109, 118 (D.D.C. 2014).
The Second Declaration of Michael G. Seidel states that during
the criminal investigation of Luthmann, BSA information was
obtained from FinCEN and that this information was withheld from
disclosure. (Doc. #64-1 at ¶¶ 61-64.) After careful review of
the summary judgment record, the Court finds that this information
was properly withheld under Exemption 3.
(f) Export Control Enforcement Information
The Export Administration Act of 1979 (“EAA”) provides for
the confidentiality of export licensing information obtained by
the government under the EAA. 50 App. U.S.C. § 2411(c)(1).
Specifically, the EAA states that “information obtained for the
purpose of consideration of, or concerning, license applications
under this Act ... shall be withheld from public disclosure unless
the release of such information is determined by the Secretary to
be in the national interest.” 50 U.S.C. § 2411(c). See also 15
C.F.R. Part 736, Supp. 2 (Administrative Order One) (2000). This
provision of the EAA “clearly qualifies as an exemption statute
for purposes of FOIA Exemption 3.” Times Pub. Co. v. U.S. Dep’t
of Commerce, 236 F.3d 1286, 1289 (11th Cir. 2001).
The Declaration of Grace Agyekum (Doc. #64-2) states that
Commerce withheld seven Reports of Investigation compiled by the
Office of Export Enforcement of the Bureau of Industry and Security
(BIS) comprising 141 pages of records originating from the Bureau
of Industry and Security (BIS). (Id. at ¶¶ 3-4.) Each Report of
Investigation contained notes of an interview in connection with
an investigation of Omni Metal Corporation for potential
violations of export control laws and regulations. Neither the
Secretary of Commerce nor the Under Secretary of Commerce for
Industry or Security had made a determination that it was in the
national interest to release these documents. (Id. at ¶¶ 4-5.)
Therefore, Commerce determined the Reports were fully exempt from
disclosure pursuant to Exemption 3, and no non-exempt information
could be segregated. (Id. at ¶¶ 6-7.) Commerce also determined
that the names of the Special Agents and the ASAC who reviewed the
reports were exempt under Exemption 7(C). (Id. at ¶ 9.)
After careful review of the summary judgment record, the Court
finds that the records were properly withheld under Exemption 3.
The Court also finds that the names of the special agents were
exempted pursuant to Exemption 7(C).
(g) Conclusion
In sum, after careful review of the summary judgment record,
the Court finds that all records withheld under Exemption 3 were
properly withheld. The statutes covering each category of records
provide that matters may be withheld from the public in a manner
which leaves no discretion on the issue, or establishes particular
criteria for withholding matters, or refers to particular types of
matters to be withheld. All withheld records fall within the scope
of the respective statutes.
(2) Exemption 5
Exemption 5 authorizes an agency to withhold from disclosure
“inter-agency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in
litigation with the agency.” 5 U.S.C. § 552(b)(5). “The test
under Exemption 5” is not whether such documents might ever be
disclosed in civil litigation, but “whether the documents would be
‘routinely’ or ‘normally’ disclosed upon a showing of relevance.”
FTC v. Grolier Inc., 462 U.S. 19, 26 (1983) (citation omitted).
“Courts universally read Exemption 5 to mean that agency documents
that would be privileged in ordinary civil discovery are also
protected from disclosure under FOIA.” Am. Oversight, 45 F.4th at
588 (citation omitted). Exemption 5 encompasses records “normally
privileged in the civil discovery context.” NLRB v. Sears, Roebuck
& Co., 421 U.S. 132, 149 (1975). “As the text indicates—albeit in
a less-than-straightforward way—this exemption incorporates the
privileges available to Government agencies in civil litigation.”
United States Fish & Wildlife Serv. v. Sierra Club, Inc., 592 U.S.
261, 267 (2021).
Exemption 5 includes the deliberative process privilege, the
attorney-client privilege, and the work product privilege. Am.
Oversight, 45 F.4th at 588-91; Protect Democracy Project, Inc. v.
Nat'l Sec. Agency, 10 F.4th 879, 885 (D.C. Cir. 2021). The
deliberative process privilege “is designed both to minimize
public confusion about agency rationales and actions”, Broward
Bulldog, Inc. 939 F.3d at 1194, and “to allow agencies to freely
explore possibilities, engage in internal debates, or play devil’s
advocate without fear of public scrutiny,” Moye, O'Brien,
O'Rourke, Hogan, & Pickert v. Nat'l R.R. Passenger Corp., 376 F.3d
1270, 1277 (11th Cir. 2004). The deliberative process privilege
protects only “deliberative” materials which are “predecisional.”
Broward Bulldog, Inc., at 1195; Moye, at 1277.
The attorney-client privilege protects “disclosures made by
a client to his attorney, in confidence, for the purpose of
securing legal advice or assistance.” Knox v. Roper Pump Co., 957
F.3d 1237, 1248 (11th Cir. 2020); Drummond Co., Inc. v. Conrad &
Scherer, LLP, 885 F.3d 1324, 1334 (11th Cir. 2018). “Unless
applicable law provides otherwise, the Government may invoke the
attorney-client privilege in civil litigation to protect
confidential communications between Government officials and
Government attorneys.” United States v. Jicarilla Apache Nation,
564 U.S. 162, 170 (2011).
The attorney work product privilege protects from discovery
in litigation “mental impressions, conclusions, opinions, or legal
theories of a party's attorney” that were “prepared in anticipation
of litigation or for trial.” Fed. R. Civ. P. 26(b)(3). To qualify
for work-product protection, “documents must: (1) be ‘prepared in
anticipation of litigation or for trial’ and (2) be prepared ‘by
or for another party or by or for that other party's
representative.’” Am. Civil Liberties Union of N. California v.
United States Dep't of Justice, 880 F.3d 473, 484 (9th Cir. 2018)
(citation omitted). Records that contain attorney work product
may be withheld pursuant to FOIA Exemption 5. Miccosukee Tribe of
Indians of Florida v. United States, 516 F.3d 1235, 1263 (11th
Cir. 2008).
The FBI and CRM assert Exemption 5 to protect certain internal
communications and handwritten interview notes. (Doc. #64, pp.
14-19.) The Second Declaration of Michael G. Seidel states the
FBI withheld interagency deliberations which included feedback,
proposals, and discussions on final agency action; documents
concerning discussions between the FBI, U.S. Attorney’s Office,
and Assistant U.S. Attorneys concerning preindictment
investigations, wiretaps, indictments, prosecutions, pretrial
activities, and trials, including litigation and prosecutorial
strategy; handwritten notes taken by an agent during a witness
interview, which were later used to prepare an official FD-302
interview report; and attorney-client privileged records of
communications between the DOJ and FBI lawyers and employees which
were for the purpose of securing legal advice. (Doc. #64-1 at ¶¶
68-74.) CRM withheld attorney work-product materials created by
DOJ attorneys during investigations of individuals for violation
of federal criminal law and exchanged internally between CRM
lawyers and externally between CRM and USAO lawyers. (Doc. #64-5
at ¶¶ 14-18.)
After a careful review of the summary judgment record, the
Court finds that the documents were properly withheld pursuant to
Exemption 5 because they “would not be available by law to a party
other than an agency in litigation with the agency” within the
meaning of 5 U.S.C. § 552(b)(5).
(3) Exemptions 6 and 7(C)
The FBI, EOUSA, and CRM withheld documents pursuant to
Exemption 6 and Exemption 7(C). Defendants discuss both exemptions
together, focusing on Exemption 7(C). (Doc. #64, pp. 19-24.)
Exemption 6 excludes from FOIA requests “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). The phrase “similar files” has a broad meaning
and includes any detailed Government records on an individual that
can be identified as applying to that individual. News-Press, 489
F.3d at 1197. Exemption 6 “requires the Court to balance ‘the
individual’s right of privacy’ against the basic policy of opening
‘agency action to the light of public scrutiny.’” United States
Dep't of State v. Ray, 502 U.S. 164, 175 (1991) (citation omitted).
See also Office of Capital Collateral Counsel, 331 F.3d at 802–03
(citing Ray). To determine whether Exemption 6 applies, the court
asks: (1) whether the withheld material was within “personnel,
medical, or similar files”; and, if so, (2) whether “a balancing
of individual privacy interests against the public interest in
disclosure reveals that disclosure of the information would
constitute a clearly unwarranted invasion of personal privacy.”
News–Press, 489 F.3d at 1196–97 (quotation marks and citation
omitted).
Exemption 7(C) overlaps with Exemption 6, although Exemption
7(C) is “more protective of privacy” than Exemption 6. U.S. Dep't
of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 496 n.6,
(1994). See also Office of the Capital Collateral Counsel, 331
F.3d at 803 n.6 (Exemption 7(C) is broader than Exemption 6).
Exemption 7(C) protects “records or information compiled for law
enforcement purposes, but only to the extent that ... production
... could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). To meet
its burden of establishing that Exemption 7(C) applies, the agency
must demonstrate that the record or information was compiled for
law enforcement purposes and (1) disclosure could “reasonably be
expected to constitute an unwarranted invasion of privacy” and (2)
the “personal privacy interest” is not “outweighed by the public
interest in disclosure.” Elec. Privacy Info. Ctr. v. United States
Dep't of Justice, 18 F.4th 712, 718 (D.C. Cir. 2021) (quoting Nat'l
Archives & Recs. Admin. v. Favish, 541 U.S. 157, 160 (2004)). “The
term ‘unwarranted’ requires [courts] to balance the [relevant]
privacy interest against the public interest in disclosure.”
Favish, 541 U.S. at 171. If the government establishes that
certain information implicates a “personal privacy” interest, the
requestor “must show that the public interest sought to be advanced
is a significant one” and that “the information is likely to
advance that interest.” Broward Bulldog, Inc., 939 F.3d at 1183
(citing Favish). “‘[W]hereas Exemption 6 refers to disclosures
that ‘would constitute’ an invasion of privacy, Exemption 7(C)
encompasses any disclosure that ‘could reasonably be expected to
constitute’ such an invasion.’ Favish, 541 U.S. at 166 (quoting
U.S. Dep't of Just. v. Reps. Comm. For Freedom of Press, 489 U.S.
749, 756 (1989)).
The Second Declaration of Michael G. Seidel establishes that
the records or information at issue were compiled for law
enforcement purposes. (Doc. #64-1 at ¶¶ 75-76.) The Declaration
also states that defendants withheld personal information about
FBI agents and staff assigned to the investigation; information
regarding third parties who provided information to the FBI, or
who were mentioned in the records, or who were identified for
investigative interest; personal information about non-FBI federal
employees; personal information about local government personnel;
and personal information about local law enforcement personnel.
(Id. at ¶¶ 81-91.)
The Declaration of Ginae Barnett (Doc. #64-3) states that the
one-page record she reviewed was compiled for law enforcement
purposes, was released in part to Luthmann, but was redacted to
withhold the names of individual third-parties, serial numbers of
firearms (which can be connected to individual firearms owners),
and the names of non-supervisory agents or officers. (Id. at pp.
1-2.)
The Declaration of Nicole Moore (Doc. #64-4) states that she
withheld the public identification of DOJ employees, their email
addresses, direct phone lines, and cell phone numbers, as well as
the signature of the officer who issued plaintiff’s warrant. This
was based on concerns about harassment and identify fraud. (Id.
at ¶¶ 18-20.) Moore noted that even though some of the EOUSA
records had been disclosed to Luthmann pursuant to criminal
discovery rules, disclosure through the FOIA process was
prohibited by Exemption 7(C). (Id. at ¶¶ 22-23.)
The Declaration of Marjorie F. Cole (Doc. #64-5) states that
62 pages of records were reviewed, and 8 pages of records were
withheld in part because they contained identifying and contact
information of third-party individuals, including cell phone
subscribers and/or targets of the criminal investigation that
appeared in law enforcement documents. (Id. at ¶¶ 9, 20-21, 23.)
After careful review of the summary judgment record, the Court
concludes that defendants have established that all the records
were created for law enforcement purposes and were “personnel” or
“similar files”, as required by § 552(b)(6) and/or (7)(C).
Defendants established that disclosure of any of this information
would constitute a clearly unwarranted invasion of personal
privacy. The Court must therefore balance the individual’s right
of privacy against the policy of opening agencies’ actions to
public scrutiny. In applying the required balancing process, the
Court finds there is no substantial public interest in the
disclosure plaintiff seeks but there are important privacy
interests by the government personnel.
(4) Exemption 7(D)
Exemption 7(D) protects “records or information compiled for
law enforcement purposes, but only to the extent that ...
production ... could reasonably be expected to disclose the
identity of a confidential source” and “in the case of a record or
information compiled by criminal law enforcement authority in the
course of a criminal investigation or by an agency conducting a
lawful national security intelligence investigation, information
furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D).
“To establish that the exemption applies, the government must prove
that ‘the source provided information under an express assurance
of confidentiality or in circumstances from which such an assurance
could be reasonably inferred.’” Broward Bulldog, Inc., 939 F.3d at
1188 (citation omitted). The “nature of an informant’s ongoing
relationship with the [agency],” “the character of the crime at
issue,” and “the source’s relation to the crime may support a
reasonable inference of an assurance of confidentiality.” Id.
(internal quotation marks and citation omitted).
The Second Declaration of Michael G. Seidel describes the
FBI’s use of confidential sources. (Doc. #64-1 at ¶¶ 92-94.) This
Declaration states that defendants withheld its permanent symbol
numbers assigned to confidential sources; and the names,
identifiers, and other information about third parties who were
under express assurances of confidentiality; the names,
identifiers, and other information of third parties for whom an
assurance of confidentiality could be implied. (Id. at ¶¶ 95-
103.) The Declaration also establishes why each category of
information was withheld. (Id.) After careful review of the
summary judgment record, the Court concludes that defendants have
established that withholding the records and information was
proper under Exemption 7(D).
(5) Exemption 7(E)
Exemption 7(E) protects “records or information compiled for
law enforcement purposes, but only to the extent that ...
production ... 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.” 5 U.S.C. § 552(b)(7)(E). “The phrase ‘techniques
and procedures,’ [] refers to how law enforcement officials go
about investigating a crime.” Allard K. Lowenstein Int'l Human
Rights Project v. Dep’t of Homeland Sec., 626 F.3d 678, 682 (2d
Cir. 2010) (citation omitted). The purpose of this exemption is
to shield sensitive law enforcement techniques from disclosure to
prevent criminals from “circumventing future [law enforcement]”
investigations. Blackwell v. Fed. Bureau of Investigation, 680 F.
Supp. 2d 79, 92 (D.D.C. 2010), aff'd, 646 F.3d 37 (D.C. Cir. 2011).
Law enforcement techniques or procedures that are well-known to
the public cannot be shielded from disclosure under this exemption.
Broward Bulldog, Inc., 939 F.3d at 1191 (collecting cases).
Nonetheless, Exemption 7(E) protects information that would reveal
facts about well-known techniques or their usefulness that are not
generally known to the public, as well as other information when
disclosure could reduce the effectiveness of such techniques. Id.
The Second Declaration of Michael G. Siedel states that
defendants withheld the FBI’s sensitive investigative file
numbers; the identity and locations of FBI squads; FBI internal
email addresses, nonpublic phone numbers, and internal email
passcodes; the FBI methods used to collect and analyze information
for investigative purposes; the focuses of specific public
corruption and organized crime investigations; the identity of
sensitive, nonpublic investigative databases and search results
from those databases; information about the targets, locations,
monitoring, and type of surveillance devices used to investigate
Luthmann; data related to the targets of pen registers or trap and
trace devices; Computer Analysis Response Team (CART) reports;
information related to the collection and analysis of BSA data;
nonpublic codenames used by the FBI; nonpublic details about FBI
undercover operations; information about money which FBI personnel
request or pay related to investigative techniques; source
reporting documents relating to confidential documents; and
wiretap application, order, and attachments. (Doc. #64-1 at ¶¶
104-131.) The Declaration also discusses the justification for
the non-disclosures. (Id.)
The Declaration of Nicole Moore (Doc. #64-4) states that
information contained in wiretap applications are investigatory
details about how the DOJ justifies its pursuit of wiretap orders,
which information is not known to the public and whose disclosure
would assist persons in taking evasive action or countermeasures
to circumvent the utility of wiretaps. (Id. at ¶ 26.)
After a careful review of the summary judgment record, the
Court finds that non-disclosure of these records was proper under
Exemption 7(E). Defendants have established that the withheld
records satisfy the requirements of Exemption 7(E).
(6) Sealed Court Records
The test for determining whether an agency has improperly
withheld records placed under seal by a court is “whether the seal,
like an injunction, prohibits the agency from disclosing the
records.” Morgan v. United States Dep’t of Justice, 923 F.2d 195,
197 (D.C. Cir. 1991) (emphasis in original). This test requires
a court to examine: (1) any explicit sealing order from the court
which may exist; (2) extrinsic evidence about the intended scope
of a purported sealing order; (3) orders of the same court in
similar circumstances; and (4) the issuing court's general rules
or procedures. Id. at 198. The government has the burden of
proving an order prohibits disclosure. Judicial Watch, Inc. v.
U.S. Dept. of Justice, 813 F.3d 380, 383 (D.C. Cir. 2016).
The Second Declaration of Michael G. Siedel states that
defendants withheld responsive records which were ordered sealed
by the District Courts in the Eastern and Southern Districts of
New York and have remained sealed. (Doc. #164-1 at ¶ 132.)
Defendants assert that even if the sealing order is lifted, the
records were properly withheld under Exemptions 3, 6, 7(C), 7(D),
and 7(E). (Id.) The EOUSA reports it withheld two application
and orders for wiretaps. (Doc. #64-4, ¶ 8.)
After a careful review of the summary judgment record, the
Court finds that records were properly withheld as sealed court
records. The Court checked the PACER system for the Eastern
District and Southern District of New York Court on May 14, 2024,
and discovered that the miscellaneous cases are still under seal.
See 1:18-mc97 (E.D.N.Y.) and 1:17-mc-97 (S.D.N.Y.). Even without
a sealing order nondisclosure would be proper under Exemptions 3,
6, 7(C), 7(D), and 7(E).
E. Foreseeable Harm and Segregability
When a FOIA exemption covers a requested agency record, the
FOIA requires that “[a]ny reasonably segregable portion of [that]
record ... be provided to any person requesting such record after
deletion of the portions which are exempt….” 5 U.S.C. § 552(b).
The FOIA requires that an agency withhold information only if the
agency reasonably foresees that disclosure would harm an interest
protected by an exemption or disclosure is prohibited by law. 5
U.S.C. § 552(a)(8)(A).
The Second Declaration of Michael G. Siedel states that the
FBI's analysis of records responsive under the FOIA is a two-part
process. “First, the FBI determines whether a record or a portion
of a record is exempt pursuant to one or more FOIA exemptions.
Second, if the record or portion thereof is exempt pursuant to one
or more FOIA exemptions, the FBI then considers whether foreseeable
harm would result from disclosure of the record or portion
thereof.” (Doc. #64-1 at ¶ 137.) The FBI conducted this two-part
analysis in connection with Luthmann’s request, and only withheld
records or portions of records which met both of these criteria.
(Id. at ¶¶ 137-138.) The Declaration of Nicole Moore states that
no portion of the wiretap applications and orders could be
reasonably segregated and released. (Doc. #64-4, ¶ 27.)
After careful review of the administrative record, the Court
finds that defendants have complied with their obligations
regarding foreseeable harm and segregability.
Accordingly, it is now
ORDERED:
1. Defendant’s Motion for Summary Judgment (Doc. #64) is
GRANTED, and judgment shall enter in favor of defendants
on the First Amended Complaint and plaintiff shall take
nothing.
2. The Clerk shall enter judgment accordingly, terminate all
pending motions and deadlines as moot, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this 15th day of
May 2024.
& AKL Be.
J9GHN E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
Copies:
Plaintiff
Counsel of record