# Pickering v. U. S. Department of Justice

> District Court, W.D. New York · December 7, 2021

URL: https://www.frixlaw.com/law-library/cases/10364478

## Case

- **Court:** District Court, W.D. New York
- **Decided:** December 7, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10364478

## How later opinions describe it (automated extraction)

- rejecting FOIA plaintiff's challenge to adequacy of agency's search for records responsive to FOIA request where the plaintiff failed to identify additional searches the requested agency should have conducted and offered no basis for concluding additional documents might exist

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________

LESLIE JAMES PICKERING, DECISION
and
Plaintiff, ORDER
v.
19-CV-001F
U.S. DEPARTMENT OF JUSTICE, (consent)

Defendant.
__________________________________________

APPEARANCES: MICHAEL KUZMA, ESQ.
Attorney for Plaintiff
1893 Clinton Street
Buffalo, New York 14206

TRINI E. ROSS
UNITED STATES ATTORNEY
Attorney for Defendant
MICHAEL S. CERRONE
Assistant United States Attorney, of Counsel
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202

JURISDICTION

On August 16, 2019, the parties to this action consented pursuant to 28 U.S.C.
§ 636(c) to proceed before the undersigned. The matter is presently before the court on
Defendant’s motion for summary judgment filed April 30, 2021 (Dkt. 23).

BACKGROUND

Plaintiff Leslie James Pickering (“Plaintiff” or “Pickering”), commenced this action
pursuant to the Freedom of Information Act (“FOIA” or “the Act”), 5 U.S.C. § 552 et seq.,
on January 1, 2019, seeking an injunction and other relief, including the disclosure and
release of agency records withheld by Defendant United States Department of Justice
(“DOJ”), and its component Federal Bureau of Investigation (“FBI”), responsive to a
FOIA request made by Plaintiff. The information Plaintiff seeks pertains to suspected
investigations of one Leonard Peltier. Defendant filed its answer on April 11, 2019 (Dkt.

7). In the July 31, 2019 Scheduling Order (Dkt. 17) (“SO”), Defendant was directed to
release non-exempt documents responsive to Plaintiff’s FOIA Request by November
30, 2020, SO ¶ 3, and Plaintiff was directed to identify by December 15, 2020, his
specific challenges to Defendants’ FOIA determinations. SO ¶ 4. Between October 31,
2019 and November 30, 2020, the FBI made 12 interim releases in response to
Plaintiff’s FOIA Request (“FOIA Responses”). In accordance with the SO, on December
14, 2020, Plaintiff filed the affidavit of his attorney, Michael Kuzma, Esq. (Dkt. 19) (“First
Kuzma Affidavit”), detailing Plaintiff’s challenges to the various FOIA Responses.
On April 30, 2021, Defendant filed a motion for summary judgment (Dkt. 23)
(“Defendant’s Motion”), attaching the Declaration of Michael G. Seidel (Dkt. 23-1)

(“Seidel Declaration”), with exhibits A through N (Dkt. 23 at 50-130) (“Defendant’s
Exh(s). __”), a Statement of Undisputed Facts (Dkt. 23-2) (“Defendant’s Statement of
Facts”), and a Memorandum of Law (Dkt. 23-3) (“Defendant’s Memorandum”). Filed as
Defendant’s Exh. N (Dkt. 23-1 at 118-130) is the so-called “Vaughn Index” the
requested government agency is required to furnish in responding to a FOIA request for
records, purporting to identify each piece of information responsive to a FOIA request,
as well as whether each responsive piece was released in full or in part, or withheld in
full as well as the asserted reason why any information was withheld either in full or in
part. 1
On June 2, 2021, Plaintiff filed the Memorandum in Opposition to Defendant’s
Motion for Summary Judgment (Dkt. 25) (“Plaintiff’s Response”), attaching the Affidavit

of Michael Kuzma, Esq. (Dkt. 25-1) (“Second Kuzma Affidavit”), with exhibits A through
E (Dkt. 25-1 at 6-37) (“Plaintiff’s Exh(s). __”), and Plaintiff’s Statement of Undisputed
Facts and Response to Defendant’s Statement of Undisputed Facts (Dkt. 25-2)
(“Plaintiff’s Statement of Facts”). On August 13, 2021, Defendant filed in further support
of summary judgment Defendant’s Reply Memorandum of Law (Dkt. 28) (“Defendant’s
Reply”), attaching the Second Declaration of Michael G. Seidel (Dkt. 28-1) (“Second
Seidel Declaration”). Oral argument was deemed unnecessary.
Based on the following, Defendant’s Motion is GRANTED.

FACTS2

Plaintiff is a proprietor of Burning Books (“Burning Books”), an independent book
store located in Buffalo, New York (“Buffalo”), which Plaintiff describes as “specializing
in social justice struggles and state repression.” Complaint ¶ 3. Plaintiff is also a
Political Science and Sociology Lecturer at Niagara University. Id. By letter dated
February 17, 2018, Plaintiff, pursuant to the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552, requested from the FBI all records related to Leonard Peltier (“Peltier”)

1 The “Vaughn Index” refers to an index prepared by the agency upon whom a FOIA request is made
setting forth all materials otherwise responsive to the FOIA request but which the agency withholds as
exempt from disclosure as well as the exemptions asserted as justifying the withholdings. See Vaughn v.
Rosen, 484 F.2d 820, 826-27 (D.C.Cir. 1973), cert. denied, 415 U.S. 977 (1974) (requiring government
agency, in responding to FOIA request, prepare a list of documents withheld as exempt, either in full or in
part, and furnish detailed justification for the asserted exemptions).
2 Taken from the pleadings and motion papers filed in this action.
that were prepared, received, transmitted, collected or maintained by the FBI, the
Terrorist Screening Center, the National Joint Terrorism Task Force, or any Joint
Terrorism Task Force (“FOIA Request”). Plaintiff’s FOIA Request was accompanied by
the required DOJ Certificate of Identity, Form DOJ-361 (“Certificate of Identity forms”),

completed with Peltier’s information and signature.
In particular, the records Plaintiff seeks pertain to Peltier who, on June 26, 1975,
was involved in a shootout with FBI Special Agents Jack R. Coler (“Coler”) and Ronald
A. Williams (“Williams”) (“the Agents”) on the Pine Ridge Reservation (“the reservation”)
in South Dakota (“the Pine Ridge shootout”). The Agents were on the reservation
investigating a robbery when Peltier, a member of the American Indian Movement
(“AIM”), and other AIM members, ambushed the Agents, both of whom were shot dead.
Peltier was convicted of the Agents’ murders but, although Peltier admitted firing at the
Agents, he denied killing them and asserted someone else is responsible for the
murders, yet refused to name such individual. Peltier’s conviction was upheld on

appeal to the Eighth Circuit Court of Appeals, United States v. Peltier, 800 F.2d 772 (8th
Cir. 1986), with the appellate opinion written by United States Circuit Judge Gerald W.
Heaney (“Judge Heaney”), who also found that although the Government withheld
favorable evidence from Peltier, the withheld evidence would not have created a
reasonable probability of acquittal had it been disclosed and thus was insufficient to
warrant vacating Peltier’s conviction. Second Kuzma Affidavit ¶¶ 15-16 (citing Plaintiff’s
Exh. D (Dkt. 25-1 at 15-17)). Peltier, who was sentenced to two consecutive life
sentences for the murders of the FBI Agents, remains incarcerated for the murders of
the Agents at the United States Penitentiary in Coleman, Florida.
In 2002, Kuzma became aware that certain records maintained by the FBI
pertaining to Peltier were being destroyed, prompting Kuzma to request their
preservation by the National Archives and Records Administration (“NARA”). By letters
dated February 20, 2003, and December 15, 2009, NARA advised Kuzma that certain

records at FBI Headquarters were turned over to NARA for permanent preservation and
the FBI field offices were instructed to identify and preserve case files and case file
numbers pertaining to Peltier and the Pine Ridge shootout. According to Plaintiff,
because “[t]here remains a great deal of public interest in the Peltier case,” Plaintiff’s
Response at 7, Plaintiff intends to make records responsive to the FOIA Request
available online for researchers, writers, and others interested in the case, and Plaintiff
intends to continue speaking about the case which demonstrates how the FBI targeted
members of AIM, the Black Panther Party, and other groups under the FBI’s “now
discredited Counterintelligence Program (COINTELLPRO).” Id.
With regard to Plaintiff’s FOIA Request, on July 5, 2018, the FBI advised Plaintiff

that approximately 6,020 pages of records responsive to the FOIA Request were
located and reviewed, and discussed the fees associating with releasing the documents
to Plaintiff. By letter dated July 18, 2018, Plaintiff’s counsel, Michael Kuzma, Esq.
(“Kuzma”), advised the FBI that Plaintiff agreed to pay for the release of the records,
and inquired when the 6,020 pages would be released. By letter dated July 31, 2018,
the FBI advised Plaintiff that FOIA requests are processed in the order received through
a multi-track system, consisting of simple tracks (fewer than 50 pages of potentially
responsive documents) and complex tracks (more than 50 pages of potentially
responsive documents), with complex track requests further divided into medium, large,
and extra-large subtracts based upon their size. The FBI further advised Plaintiff his
FOIA Request was in the large track requiring more time to process and requested
Plaintiff contact the FBI if Plaintiff desired to narrow his FOIA Request, which could
result in shorter response processing time. On January 2, 2019, Plaintiff commenced

the instant action.
On March 6, 2019, the FBI modified its estimate of fees associated with the FOIA
Request, advising Plaintiff the FBI located approximately 4,760 pages of records and
audio and video files that the FBI determined were potentially responsive to Plaintiff’s
FOIA Request for which the anticipated fees could exceed $ 25.00. By letter to the FBI
dated May 30, 2019, Plaintiff narrowed the scope of the FOIA Request, stating that with
the exception of “Subfile N”3 Plaintiff was not requesting the FBI reprocess records that
were the subject of prior FOIA litigation brought in the United States District Courts for
the District of Minnesota and the Western District of New York, and further narrowed the
FOIA Request to records generated after such FOIA litigation.4 Between October 31,

2019 and November 30, 2020, the FBI made 12 interim releases in response to
Plaintiff’s FOIA Request (“FOIA Responses”), totaling 5,253 pages of responsive
records from which the parties, on January 22, 2021, agreed the FBI would randomly
select 500 processed records containing withheld information, providing Plaintiff with
justifications for exempting the withheld information from released documents. The

3 “Subfile N” includes documents processed with regard to a previous FOIA litigation commenced by
Peltier. Seidel Declaration ¶ 18.
4 Prior to receiving from the FBI any documents responsive to his FOIA Request, Plaintiff filed two
appeals with the DOJ’s Office of Information Policy (“OIP”), claiming the FBI failed to timely respond to
the FOIA Request, including on May 3, 2018, and on October 10, 2018 (“Plaintiff’s appeals”). Both
appeals were acknowledged by the OIP, which subsequently denied both appeals, advising Plaintiff that
because the FBI had yet to made any adverse determination on Plaintiff’s FOIA Request, there was no
response for the OIP’s consideration on Plaintiff’s appeals.
Vaughn Index of the 500 randomly selected pages shows 342 pages were released in
part (“RIP”), and 158 pages were withheld in full (“WIF”) based on FOIA exemptions.
In connection with Defendant’s pending motion, an explanation as to how
Plaintiff’s FOIA Request was processed is provided by Michael G. Seidel (“Seidel”),

Section Chief of the Record/Information Dissemination Section (“RIDS”), Information
Management Division (“IMD”). According to Seidel, in fulfilling its integrated missions
and functions as a law enforcement, counterterrorism, and intelligence agency, the FBI
compiles and maintains in the Central Records System (“CRS”) records “consisting of
applicant, investigative, intelligence, personnel, administrative, and general files . . . .”
Seidel Declaration ¶ 20. The CRS maintains records for the entire FBI organization
including FBI Headquarters (“FBIHQ”), FBI Field Offices, and FBI Legal Attached
Officers (“Legats”) worldwide.
CRS files are numerically sequenced and organized according to designated
subject categories referred to as “FBI classifications.” As each FBI case file is opened,

the file is assigned a Universal Case File Number (“UCFN”) consisting of three
sequential components including (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. Within each case file,
certain documents of interest are “serialized,” i.e., assigned a document number in the
order in which the document is added to the file, typically in chronological order, referred
to as “serials.”
Records are located within the CRS through its general indices with the files
alphabetized according to subject matter including individuals, organizations, events
and subjects of investigative interest. Entries in the general indices fall into two
categories including (1) a main entry created for each individual or non-individual, i.e.,
an organization or other entity, that is the subject or focus of an investigation, and (2) a
reference or “cross-reference” entry created for individuals or non-individuals associated

with a case, but not the main subject or focus of an investigation. Reference subjects
typically are not identified in the case title of a file. CRS indexing information is done by
FBI investigators who have the discretion to deem information sufficiently significant to
warrant indexing for future retrieval. Thus, not every individual name, organization,
event, or other subject matter is separately indexed in the general indices.
Initially, the indices for CRS files were manually maintained on paper index
cards, filed alphabetically based on subject matter. Later, many of the FBI’s manual
indices for FBIHQ and FBI field offices were automated into electronic databases. Not
all indexed data, however, was captured by automation; rather, automation pf FBIHQ
manually indices captured indexed data on individuals born on or after January 1, 1958,

and on organizations and events created or occurring on or after January 1, 1973.
Automation of FBI field offices’ manual indices captured indexed data for individuals
born on or after June 30, 1973, and on organizations and events created or occurring
on or after June 30, 1988.
In 1995, Automatic Case Support (“ACS”), an electronic integrated case
management system, was implemented with CRS records converted from automated
systems previously utilized by the FBI into a single, consolidated case management
system accessible by all FBI offices. Automation of FBI Legats’ manual indices
because with ACS on October 16, 1995 for indexed data on individuals born on or after
October 16, 1980, and for organizations and events created or occurring on or after
October 16, 1995. ACS searches were conducted through use of the Universal Index
(“UNI”) which provides an electronic means to search by indexing pertinent investigative
information including such identifying information as name, date of birth, race, sex,

locality, social security number, address, and date of an event. On July 1, 2012, the
Sentinel system (“Sentinel”) became the effective FBI-wide case management system.
Sentinel includes the same automated applications utilized in ACS, and also provides a
web-based interface to FBI users. Sentinel did not replace ACS, however, until August
1, 2018, when “ACS data was migrated into Sentinel, including the ACS indices data
and digitalized investigative records.” Seidel Declaration ¶ 27. Sentinel also retains the
index search methodology and function whereby the CRS is queried via Sentinel for
pertinent indexed main or reference entries in case files. As such, CRS index data from
the UNI application previously searched via ACS is now searched within Sentinel using
the “ACS Search” function.

Accordingly, upon receiving FOIPA requests for information on subject matters
predating implementation of Sentinel, RIDS begins its searching efforts by conducting
index searches via Sentinel’s ACS Search function, followed by an index search of
Sentinel records to ensure any subsequent records or data relevant to the FOIPA
request are located. The CRS automated indices are updated daily with searchable
material newly indexed in Sentinel.
In the instant case, upon receiving Plaintiff’s FOIA Request, RIDS conducted
CRS index searches for potentially responsive records employing the UNI application of
ACS and the Sentinel automated indices, using as search terms “Leonard Peltier,”
“Lwonard Peltier,” and “Leonard James Peltier” to search records maintained in FBIHQ
and all FBI’s field offices, identifying main and cross-referenced records. Because
Peltier was born before January 1, 1958, the FBI supplemented its ACS and Sentinel
indices search with a search of pertinent manual indices for FBIHQ and applicable FBI

field offices including Buffalo, Memphis, Oklahoma City, Omaha, Richmond, Los
Angeles, Denver, Detroit, Birmingham, Minneapolis, San Juan, Sacramento, Portland,
San Antonio, Charlotte, and Phoenix.
Each page of the records responsive to Plaintiff’s FOIA Request is Bates-
stamped. The FBI provides a “Vaughn Index” listing a description of each document
with the associated Bates-stamped page number, and a chart indicating for each record
whether it was released in part, or withheld in full, as well as on which FOIA Exemption
the FBI relies to support withholding the information. The Vaughn Index in this case
(Dkt. 23-1 at 118-130), is limited to the 500 sample pages to which the parties agreed,
of which 342 were RIP and 158 were WIF.5 Of material withheld in full or in part, the

FBI determined the withheld information was either exempt from disclosure pursuant to
the cited FOIA exemption, or is so intertwined with exempt material that no information
on the withheld pages could reasonably be segregated for release.

DISCUSSION

1. Summary Judgment

Defendant moves for summary judgment on Plaintiff’s challenges to the
adequacy of the FBI’s FOIA Responses. Summary judgment of a claim or defense will

5 No pages in the Vaughn Index were released in full.
be granted when a moving party demonstrates that there are no genuine issues as to
any material fact and that a moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Miller v. Wolpoff &

Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). The court is required to construe
the evidence in the light most favorable to the non-moving party, Collazo v. Pagano,
656 F.3d 131, 134 (2d Cir. 2011), and summary judgment may not be granted based on
a credibility assessment. See Reyes v. Lincoln Automotive Financial Services, 861
F.3d 51, 55 (2d Cir. 2017) (“Adverse parties commonly advance conflicting versions of
the events throughout a course of litigation. In such instances on summary judgment,
the court is required to resolve all ambiguities and draw all permissible factual
inferences in favor of the party against whom summary judgment is sought.” (citations,
quotation marks, and brackets omitted)). The party moving for summary judgment
bears the burden of establishing the nonexistence of any genuine issue of material fact

and if there is any evidence in the record based upon any source from which a
reasonable inference in the non-moving party's favor may be drawn, a moving party
cannot obtain a summary judgment. Celotex, 477 U.S. at 322; see Anderson, 477 U.S.
at 247-48 (“summary judgment will not lie if the dispute about a material fact is
“genuine,” that is, if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party”). “A fact is material if it ‘might affect the outcome of the suit under
governing law.’” Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting
Anderson, 477 U.S. at 248).
“[T]he evidentiary burdens that the respective parties will bear at trial guide
district courts in their determination of summary judgment motions.” Brady v. Town of
Colchester, 863 F.2d 205, 211 (2d Cir. 1988)). A defendant is entitled to summary
judgment where “‘the plaintiff has failed to come forth with evidence sufficient to permit

a reasonable juror to return a verdict in his or her favor on’” an essential element of a
claim on which the plaintiff bears the burden of proof. In re Omnicom Group, Inc., Sec.
Litig., 597 F.3d 501, 509 (2d Cir. 2010) (quoting Burke v. Jacoby, 981 F.2d 1372, 1379
(2d Cir. 1992)). Once a party moving for summary judgment has made a properly
supported showing of the absence of any genuine issue as to all material facts, the
nonmoving party must, to defeat summary judgment, come forward with evidence that
would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes
Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). “[F]actual issues created solely
by an affidavit crafted to oppose a summary judgment motion are not ‘genuine’ issues
for trial.” Hayes v. New York City Dep’t of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).

“An issue of fact is genuine and material if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Cross Commerce Media, Inc. v.
Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016) (citing SCR Joint Venture L.P. v.
Warshawsky, 559 F.3d 133,137 (2d Cir. 2009)).
In the instant case, Defendant argues in support of summary judgment that the
FBI’s search for records responsive to Plaintiff’s FOIA Request was adequate,
Defendant’s Memorandum at 8-10, and the FBI’s FOIA Responses were proper with
regard to segregability, id. at 10-12, and the various asserted FOIA Exemptions. Id. at
12-22. In opposition, Plaintiff argues the FBI must release “reasonably segregable
information,” Plaintiff’s Response at 2-4, the FBI has not met its burden of proof for
withholding information pursuant to FOIA Exemption 3, id. at 5, has improperly invoked
Exemption 5, id., Exemptions 6 and 7(C) do not protect from disclosure the names of
deceased individuals and retired FBI special agents, id. at 6-9, records withheld

pursuant to Exemption 7(D) should be released, id. at 9-10, the FBI’s claim of
exemption under Exemption 7(E) should be rejected, id. at 10-13, and the FBI’s search
for records was inadequate. Id. at 13. Plaintiff further asserts he is eligible for an award
of attorney fees and litigation costs incurred in connection with this action. Id. at 13-14.
In reply, Defendant argues the FBI’s segregability review was proper, Plaintiff’s Reply at
1-3, the FBI properly invoked the various FOIA Exemptions, id. at 3-9, the FBI’s for
records responsive to Plaintiff’s FOIA Request was adequate, id. at 9-11, it is premature
for the parties to litigate attorney fees, id. at 11-12, but if the court should consider such
request, Plaintiff is not entitled to such an award. Id. at 12-14.

2. FOIA Overview

“The Freedom of Information Act adopts as its most basic premise a policy
strongly favoring public disclosure of information in the possession of federal agencies.”
Halpern v. F.B.I., 181 F.3d 279, 286 (2d Cir. 1999) (citing cases). “As noted by the
Supreme Court, under FOIA, ‘federal jurisdiction is dependent on a showing that an
agency has (1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records.’’” Grand Cent.
Partnership, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999) (quoting United States
Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1980) (quoting Kissinger v.
Reporters Comm. for Freedom of Press, 445 U.S. 136, 150 (1980))). “Only when each
of these criteria is met may a district court ‘force an agency to comply with the FOIA's
disclosure requirements.’” Id.
“[T]he strong presumption in favor of disclosure places the burden on the agency
to justify the withholding of any requested documents.” United States Dep't of State v.

Ray, 502 U.S. 164, 173 (1991). The agency has the initial burden to show it conducted
an adequate search for responsive records. Carney v. United States Dep't of Justice,
19 F.3d 807, 812 (2d Cir.), cert. denied, 513 U.S. 823 (1994). A search is considered
adequate if it was reasonably calculated to uncover all relevant documents, yet
reasonableness does not demand perfection, and a reasonable search need not
uncover every document extant. Grand Cent. Partnership, Inc., 166 F.3d at 489.
“The FOIA requires that agency records be made available promptly upon a
request that ‘reasonably describes such records and ... is made in accordance with
published rules stating the time, place, fees (if any), and procedures to be followed.’”
Ruotolo v. Dep’t of Justice, Tax Division, 53 F.3d 4, 9 (2d Cir. 1995) (quoting 5 U.S.C.

§ 552(a)(3)). FOIA, however, exempts from disclosure nine categories of information.
5 U.S.C. § 552(b)(1) through (9) (“Exemption (b)(__)”). “Accordingly, to prevail on a
summary judgment motion in a FOIA case, an agency must demonstrate ‘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.’” Ruotolo, 53
F.3d at 9 (quoting Nat'l Cable Television Ass'n Inc. v. FCC, 479 F.2d 183, 186 (D.C. Cir.
1973)). Furthermore, “‘to prevail on a motion for summary judgment in a FOIA case, the
defending agency has the burden of showing that its search was adequate.’” Id.
(quoting Carney, 19 F.3d at 812).
“‘Affidavits submitted by an agency are accorded a presumption of good faith;
accordingly, discovery relating to the agency's search and the exemptions it claims for
withholding records generally is unnecessary if the agency's submissions are adequate
on their face.’” Nat. Res. Def. Council, Inc. v. U.S. Dep't of Interior, 36 F. Supp. 3d 384,

398 (S.D.N.Y. 2014) (quoting Carney, 19 F.3d at 812 (citation omitted)). “‘In order to
justify discovery once the agency has satisfied its burden, the plaintiff must make a
showing of bad faith on the part of the agency sufficient to impugn the agency's
affidavits or declarations, or provide some tangible evidence that an exemption claimed
by the agency should not apply or summary judgment is otherwise inappropriate.’” Id.
(citations omitted).
“Summary judgment is the preferred procedural vehicle for resolving FOIA
disputes.” Bloomberg, L.P. v. Bd. of Governors of Fed. Reserve Sys., 649 F.Supp.2d
262, 271 (S.D.N.Y. 2009). “In order to prevail on a motion for summary judgment in a
FOIA case, the defending agency has the burden of showing that its search was

adequate and that any withheld documents fall within an exemption to the FOIA.”
Carney, 19 F.3d at 812. In contrast, “‘[s]ummary judgment in favor of [a] FOIA plaintiff
is appropriate when an agency seeks to protect material which, even on the agency's
version of the facts, falls outside the proffered exemption.’” Nat. Res. Def. Council, Inc.,
36 F.Supp.3d at 398 (quoting NY. Times Co. v. U.S. Dep't of Def., 499 F.Supp.2d 501,
509 (S.D.N.Y. 2007)). In resolving a summary judgment motion in a FOIA action, the
district court conducts a de novo review of an agency's response to a FOIA request
including any government records which the agency claims are exempt from disclosing.
See Lee v. F.D.I.C., 923 F.Supp. 451, 453 (S.D.N.Y. 1996) (citing 5 U.S.C. §
552(a)(4)(B); and Dep’t of the Air Force v. Rose, 425 U.S. 352, 361-62 (1976)). Such
“de novo review requires the court to reweigh the evidence compiled by the agency to
determine whether the agency's findings are correct, not just whether they are
reasonable.” Id. at 453-54. Although FOIA authorizes in camera inspection of the

documents in question, it is not required. Id. (citing 5 U.S.C. § 552(a)(4)(B)).
3. FOIA Request

Defendant argues in support of summary judgment that the FBI’s search for
records responsive to Plaintiff’s FOIA request was adequate, Defendant’s Memorandum
at 8-10, the FBI’s FOIA Responses were proper, including with regard to segregability,
id. at 10-12, and the withholding of records pursuant to FOIA Exemption 3, id. at 12-14,
Exemption 5, id. at 14-16, Exemptions 6 and 7(C), id. at 16-19, Exemption 7(D), id. at
19-21, and Exemption 7(E), id. at 21-22. In opposition, Plaintiff argues the FBI failed to
comply with its burden of establishing that documents withheld in full contain no
segregable information, i.e., information that is not inextricably intertwined with the
exempt portions and which should have been released, Plaintiff’s Response at 2-4, and
also failed to establish information was properly withheld pursuant to FOIA Exemptions
3, id. at 5, 5, id., 6(b) and 7(C), id. at 6-9, 7(D), id. at 9-10, and 7(E), id. at 10-13, and
the FBI’s search of records responsive to the FBI’s FOIA Request was inadequate. Id.
at 13. Plaintiff also seeks an award of attorney fees and litigation costs incurred in
connection with this action. Id. at 13-14. In further support of summary judgment,
Defendant argues the FBI’s segregability review was proper, Defendant’s Reply at 1-3,
the FBI properly invoked each of the FOIA exemptions on which the FBI relies in
withholding information, id. at 3-9, the FBI’s search was adequate, id. at 9-12, and that
an award of attorney fees to Plaintiff would be premature until and unless Plaintiff
“substantially prevails” in this action. Id. at 12-14.
A. Adequacy of Search
In challenging the adequacy of Defendant's search for documents responsive to

Plaintiff's FOIA Request, Plaintiff argues the burden is on Defendant to “demonstrate
beyond material doubt” that the FBI “conducted a search reasonably calculated to
uncover all relevant documents,” Plaintiff’s Response at 13, that a requested agency
may not limit its search to only one record system if other systems are likely to reveal
responsive records, id., and any doubt about the adequacy of a search should be
resolved in favor of the requester. Id. Plaintiff maintains the inadequacy of the FBI’s
search is demonstrated by the fact the search returned no records pertaining to the
FBI’s interaction with Judge Heaney, id. and that although NARA placed a moratorium
on records pertaining to Peltier, nothing in the Seidel Declaration indicates whether
such records are being preserved. Id. In further support of summary judgment,

Defendant argues that in responding to a FOIA request, an agency is not required to
search every record system, Defendant’s Reply at 9-10, that although the FBI located
no records responsive to Plaintiff’s FOIA Request referencing Judge Heaney, the details
of the FBI’s search as provided in the Seidel Declaration and the Seidel Reply
Declaration establish the adequacy of the search which is not to be judged by the
results, id. at 10-11, and whether the FBI is complying with the NARA’s directive that the
FBI preserve records pertaining to Peltier is irrelevant to the adequacy of the FBI’s
search for records responsive to the FOIA Request. Id. at 11 n. 8.
“To secure summary judgment in a FOIA case, the defending agency must show
through reasonably detailed affidavits or declarations that it conducted an adequate
search and that any withheld documents fall within a FOIA exception.” Adamowicz v.
I.R.S., 402 Fed.Appx. 648, 650 (2d Cir. 2010) (citing Carney, 19 F.3d at 812). See

Hodge v. F.B.I., 703 F.3d 575, 579 (D.C. Cir. 2013) (“In general, the adequacy of a
search is ‘determined not by the fruits of the search, but by the appropriateness of [its]
methods.’” (quoting Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C.
Cir. 2003))). Such affidavits are accorded “‘a presumption of good faith,’” id. (quoting
Wilner v. NSA, 592 F.3d 60, 69 (2d Cir. 2009)), “which ‘cannot be rebutted by purely
speculative claims about the evidence and discoverability of other documents.’” Id.
(quoting Grand Cent. P'Ship, Inc., 166 F.3d at 489. Significantly, “[a]n affidavit from an
agency employee responsible for supervising a FOIA search is all that is needed to
satisfy Rule 56(e); there is no need for the agency to supply affidavits from each
individual who participated in the actual search.” Carney, 19 F.3d at 814. Nor does the

fact that additional records responsive to a FOIA request are not located and produced
until after the plaintiff commences a FOIA action render the initial search insufficient.
Hodge, 703 F.3d at 580 (“it does not matter than an agency's initial search failed to
uncover certain responsive documents so long as subsequent searches captured them”
(italics in original)). Furthermore, “the law demands only a ‘relatively detailed and
nonconclusory’ affidavit or declaration.” Adamowicz, 402 Fed.Appx. at 650-51 (quoting
Grand Cent. P'Ship, Inc., 166 F.3d at 488-89). Here, Defendant satisfies this standard
by providing the Seidel Declaration and the Seidel Reply Declaration.
Specifically, Seidel avers that when Plaintiff filed his FOIA Request, Seidel, as
RIDS Section Chief, was responsible for managing responses to requests for records
and information pursuant to, as relevant here, FOIA as amended by the OPEN
Government Act of 2007, the OPEN FOIA Act of 2009, the FOIA Improvement Act of

2016, the Privacy Act of 1974, Executive Order 13,526, Presidential, Attorney General,
and FBI policies and procedures, judicial decisions, and Presidential and Congressional
directives. Seidel Declaration ¶¶ 1-2. In such capacity, Seidel is fully familiar with
procedures followed by the FBI in responding to FOIA Requests, including the request
filed by Plaintiff seeking records related to Leonard Peltier. Id. ¶ 3. Seidel recounts in
detail the administrative history of the steps taken by the FBI in response to Plaintiff’s
FOIA request, id. ¶¶ 5-19, explaining the FBI’s administrative process in searching for
records responsive to the FOIA Request. Id. at 20-43. According to Seidel, RIDS
policy, which was followed in processing Plaintiff’s FBI FOIA Request, is to search for
and identify “main” files responsive to most FOIPA requests at the administrative stage

and, thus, RIDS also conducted a search of the CRS to locate any “reference” material
potentially responsive to Plaintiff’s FOIA Request. Id. ¶ 34-39. The CRS search was
done using the index search methodology including the FBI’s automated indices
available through Sentinel. Id. Such searches included variations of Peltier’s name as
per Plaintiff’s FOIA Request. Id. ¶ 36. In total, the FBI identified 5,253 references
responsive to Plaintiff’s FOIA Request, of which 4,404 were released, in 12 interim
releases, to Plaintiff either in full or in part. Id. ¶ 19.
Because of its comprehensive nature and scope, CRS is the principal records
system searched for records responsive to FOIA Requests concerning the FBI, and the
Sentinel and ACS indices would also be most likely to locate any electronic surveillance
records (“ELSUR”) responsive to such request. Seidel Declaration at 33. Seidel further
explains that although Plaintiff specifically requested the FBI search other systems or
locations for responsive records, including, inter alia, Laboratory Records, the “Bureau

Mailing Lists,” and surveillance databases, FOIA Request, Dkt. 23-1 at 51-54, because
Plaintiff’s FOIA Request seeks records pertaining to Peltier, who is a subject reasonably
expected to be indexed within the automated indices available in Sentinel, and given the
comprehensive nature of the information contained in the CRS, “the CRS is the FBI
system of records where responsive records could reasonably be expected to be
found.” Id. ¶ 39. Significantly, the FBI is not required to search all records systems
proposed by a requesting party, including those specified by Plaintiff in his FOIA
Request, Dkt. 23-1 at 51-54. See Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68
(D.C.Cir. 1990) (“There is no requirement that an agency search every record system,”
including each database specified by the requesting party). Seidel also emphasizes

that “RIDS search policy is grounded on the principle of reasonableness, not mere
possibility, in the absence of information suggesting that records may be found
elsewhere.” Id. Nor has Plaintiff provided any information upon which RIDS could
reasonably conclude records, including records pertaining to Peltier or Judge Heaney,
would reside outside the CRS, see Hodge, 703 F.3d at 580 (rejecting FOIA plaintiff's
challenge to adequacy of agency's search for records responsive to FOIA request
where the plaintiff failed to identify additional searches the requested agency should
have conducted and offered no basis for concluding additional documents might exist),
and the information found from the CRS search did not indicate any additional records
would be located in the other systems Plaintiff identified. Seidel Declaration ¶ 39.
These details provided in the Seidel Declaration, based on his personal knowledge and
experience working as RIDS Section Chief when Plaintiff’s FBI FOIA Request was
processed, Carney, 19 F.3d at 814 (FOIA response requires affidavit from agency

employee responsible for FOIA requests), and which is both unrebutted and entitled to a
presumption of good faith, Wilner, 592 F.3d 69 (properly made and unrebutted affidavit
responding to FOIA request entitled to good faith presumption), sufficiently describe a
reasonable and thorough search of all databases relevant to Plaintiff's FBI FOIA
request, Grand Cent. P'Ship, Inc., 166 F.3d at 488-89 (“the law demands only a
‘relatively detailed and nonconclusory’ affidavit or declaration”). Further, as Defendant
notes, Defendant’s Reply at 11 n. 8, whether the FBI is complying with NARA’s 2003
directive to preserve records pertaining to Peltier is not relevant to the question of the
adequacy of the FBI’s search for records responsive to Plaintiff’s FOIA Request, such
that Seidel could not be expected to comment on the issue.

Accordingly, the undisputed record establishes Defendant performed a
reasonable search for information, documents and records responsive to Plaintiff's FOIA
request. Summary judgment regarding the adequacy of the FBI’s search in response to
Plaintiff’s FOIA Request thus is GRANTED with regard to Defendant’s Motion.
B. Segregability
Defendant asserts that after processing a total of 5,253 pages of records
responsive to Plaintiffs’ FOIA Request, the parties agreed the FBI would randomly
select a sample of 500 pages of documents containing withheld information which set
consists of 342 pages released in part (“RIP”), and 158 pages withheld in full (“WIF”).
Defendant’s Memorandum at 11. Defendant explains that the 342 pages RIP contain
redacted information pursuant to FOIA Exemptions which were segregable from
portions of the records that could be released without triggering foreseeable harm to
any interest protected by the relevant FOIA exemptions. Id. With regard to the

information that was WIF, Defendant explains that the information on the WIF pages
was either fully covered by one or more FOIA exemptions, or was so intertwined with
exempt material that “further segregation of the intertwined material would employ finite
resources only to produce disjointed words, phrases, or sentences that, taken
separately or together, would have minimal or no informational content.” Id. at 11-12.
In opposing summary judgment, Defendant argues that the Seidel Reply Declaration
provides additional information for the court to consider without conducting in camera
review of the 158 pages WIF, Defendant’s Reply at 2, and that further describing the
withheld information would risk identifying the exempt information the FBI withheld as
exempted under FOIA. Id.

Insofar as Plaintiff urges the court to “conduct an in camera review of the pages
withheld in full to determine whether or not there are any segregable portions,” Plaintiff’s
Memorandum at 4, Congress left it in the court's discretion to determine whether or not
to undertake in camera review. Military Audit Project v. Bush, 418 F.Supp. 876, 879
(D.D.C. 1976). Further, where the government agencies’ affidavits on their face indicate
the documents withheld logically fall within the claimed exemptions and there is no
doubt as to the requested agency’s good faith, the court should restrain its discretion to
order in camera review. Lead Industries Ass’n, Inc. v. Occupational Safety and Health
Administration, 610 F.2d 70, 87-88 (2d Cir. 1979). In the instant case, no in camera
review is required because the Seidel Declaration and the Seidel Reply Declaration
objectively verify the FBI’s asserted decision to deny disclosing entire pages of
documents pertaining to Peltier.
In particular, Seidel avers the FBI identified 5,253 pages responsive to the FOIA

Request, from which were randomly selected, in accordance with the parties’
agreement, 500 pages of which 342 were RIP and 158 were WIF. Seidel Declaration
¶ 101. Seidel explains that the redactions to the 342 records RIP avoids triggering
foreseeable harm to one or more interests protected by the FOIA exemptions. Id.
¶ 101.a. Seidel further explains with regard to the 158 pages WIF that additional
segregation of “this intertwined information would employ finite resources only to
produce disjointed words, phrases, or sentences that, taken separately or together,
would have minimal or no informational content.” Id. ¶ 101.b.
“Disclosable information cannot be easily separated from that which is exempt
without compromising the secret nature of the information.” Doherty v. United States

Dep't of Justice, 775 F.2d 49, 52–53 (2d Cir. 1985). As such, “that there may be some
nonexempt matter in documents which are predominantly exempt does not require the
district court to undertake the burdensome task of analyzing” withheld documents in
camera in an uncertain effort to glean some potentially disclosable material. Id. (citing
Lead Industries, 610 F.2d at 88. See also Weissman v. CIA, 565 F.2d 692, 697–98
(D.C.Cir.1977)).
Here, the Seidel Declaration and the Seidel Reply Declaration provide an
objective verification in support of the FBI's decision to deny disclosure of documents
containing intelligence information and material pertaining thereto, as the FBI asserts.
In particular, Plaintiff has not come forward with any basis calling into question Seidel’s
explanation that the non-exempt information found on the 158 pages WIF of the random
sample of 500 pages is “so intertwined with exempt information” that further segregation
“would employ finite resources only to produce disjointed words, phrases, or sentences

that taken separately or together, would have minimal or no informational content.”
Moreover, with regard to the segregability of the documents or lack thereof, “an
agency's justification . . . is sufficient if it appears ‘logical’ or ‘plausible.’” N.Y. Times Co.
v. U.S. Dep’t of Justice, 756 F.3d 100, 119 (2d Cir. 2014) (quoting Wolf v. CIA, 473 F.3d
370, 374-75 (D.C. Cir. 2007)). Here, the FBI’s asserted justification for failing to further
segregate information for release appears both “logical” and plausible.” As such, there
is no reason to put aside the good faith presumption afforded the FBI’s explanation
provided by Seidel. See Ramaci v. Fed. Bureau of Investigation, 2021 WL 4896277, at
* 10 (S.D.N.Y. Oct. 20, 2021) (holding FOIA plaintiff, by failing to counter affidavit by
Seidel that further segregability would yield only sentence fragments that provided no

information, also failed to overcome the presumption of good faith afforded to such
affidavit); Mermerlstein v. U.S. Dep’t of Justice, Fed. Bureau of Investigation, 2021 WL
3455314, at *17 (E.D.N.Y. Aug. 4, 2021) (same). As such, in camera review of these
materials is not required.
Summary judgment therefore is GRANTED on Defendant’s Motion pertaining to
the segregation of information withheld in full.
C. FOIA Exemptions
The balance of Plaintiff’s arguments regarding the FOIA Responses are
predicated on the so-called “FOIA Exemptions” set forth in 5 U.S.C. § 552(b) as the
basis for redacting information from responsive documents or withholding their release
altogether and “whether the agency has sustained its burden of demonstrating that the
documents requested are . . . exempt from disclosure.” Pub. Inv'rs Arbitration Bar Ass'n
v. SEC, 771 F.3d 1, 3 (D.C. Cir. 2014) (quoting ACLU v. Dep't of Justice, 655 F.3d 1, 5

(D.C. Cir. 2011)). In particular, information responsive to Plaintiff’s FOIA Request was
withheld pursuant to 5 U.S.C. § 552(b)(3) (“Exemption 3), (b)(5) (“Exemption 5”), (b)(6)
(“Exemption 6”), (b)(7)(C) (“Exemption 7(C)”), (b)(7)(D) (“Exemption 7(D)”), and
(b)(7)(E) (“Exemption 7(E)”), and the court addresses the arguments raised with regard
to each of these asserted exemptions.
1. Exemption 3
The Vaughn Index prepared with regard to the 500 randomly selected pages
responsive to the FOIA Request shows the FBI withheld, either in full or in part, many
records pursuant to Exemption 3. Dkt. 23-1 at 120-20. According to Defendant, the FBI
withheld pursuant to Exemption 3 information the FBI is obligated to protect by statute,

specifically, the National Security Act of 1947 (“NSA”), as amended by the Intelligence
Reform and Terrorism Prevention Act of 2004 (“IRTPA”), 50 U.S.C. § 3024(i)(1).
Defendant’s Memorandum at 12-13. In opposition, Plaintiff argues Seidel, on behalf of
Defendant, “fails to adequately explain why the withheld information would reveal
intelligence sources and methods.” Plaintiff’s Response at 5. In further support of
summary judgment, Plaintiff maintains Seidel sufficiently explained that on its face, the
NSA, as amended by the IRTPA, leaves agencies, including the FBI, without discretion
about withholding from the public information pertaining to intelligence sources and
methods to avoid revealing information about national security investigations.
Defendant’s Reply at 3-4 & n. 2 (citing CIA v. Sims, 471 U.S. 159 (1985)).
As relevant here, Exemption 3 protects from disclosure information that is
(3) specifically exempted from disclosure by statute . . . if that statute –
(A)(i) requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
(ii) establishes particular criteria for withholding or refers to particular types
of matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009,
specifically cites to this paragraph.6

5 U.S.C. § 552(b)(3).
As relevant here, the NSA provides “[t]he Director of National Intelligence shall protect
intelligence sources and methods from unauthorized disclosure.” 50 U.S.C.A. §
3024(i)(1) (“§ 3024(i)(1)”). As Seidel explains, on its face, the NSA leaves the Director
of National Intelligence (“DNI”), no discretion regarding the withholding from the public
information about intelligence sources and methods. Seidel Declaration ¶ 45 (citing CIA
v. Sims, 471 U.S. 159 (1985). To fulfill its obligation under the NSA to protect
intelligence sources and methods, the DNI has authority to establish and implement
guidelines for the Intelligence Community (“IC”) for the classification of information
under applicable laws and Executive Orders for access to and dissemination of
intelligence. Id. ¶ 46. In accordance with this authority, “the DNI promulgated
Intelligence Community Directive 700, which provides that IC elements shall protect
‘national intelligence and intelligence sources and methods and activities from
unauthorized disclosure.” Id. ¶ 46 & n. 13 (noting Intelligence Community Directive
(ICD) 700, dated June 7, 2012, at ¶ E.2.a). Relevantly, “[t]he FBI is one of 17 member

6 Because both the NSA and the IRTPA were enacted prior to the enactment of the OPEN FOIA Act of
2009, 5 U.S.C. § 552(b)(3)(B) does not apply.
agencies comprising the IC, and as such must protect intelligence sources and
methods.” Id. Defendant notes that “§ 3024(i)(1) does not impose a requirement to
articulate harm,” and that disclosure of intelligence sources and methods “presents a
bona fide opportunity for individuals to develop and implement countermeasures,

resulting in the loss of significant intelligence information, sources, and methods relied
upon by national policymakers and the IC to safeguard the national security of the
United States.” Seidel Declaration ¶ 47 n. 14. Accordingly, Defendant maintains the
FBI was without any discretion in withholding, pursuant to Exemption 3, material subject
to the NSA. Id. ¶ 47. In opposing summary judgment, Plaintiff argues that Seidel fails
to explain why the withheld information would reveal intelligence sources and methods
related to national security. Plaintiff’s Response at 5 (citing Open Society Justice
Initiative v. CIA, 505 F.Supp.3d 234 (S.D.N.Y. 2020) (“Open Society”). As Defendant
argues in further support of summary judgment, however, Open Society is inapposite
because it is limited to an agency’s provision of a so-called “Glomar” response7 to a

FOIA Request in which an agency refuses to confirm or deny the existence of requested
records because such acknowledgment could reveal the existence of information
entitled to protection and, thus, the fact of an investigation potentially impairing national
security. Defendant’s Reply7 at 3.
When reviewing an agency's withholding pursuant to Exemption 3, two questions
must be considered including: (1) whether the statute in question is a “withholding

7 The Glomar doctrine provides “that an agency may, pursuant to FOIA's statutory exemptions, refuse to
confirm or deny the existence of certain records in response to a FOIA request . . ., ” where such
confirmation or denial would reveal the existence of an investigation, a fact exempted from disclosure.
Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 67 (2d Cir. 2009).
statute,”8 and, if so, (2) whether the withheld material qualifies under that statute. CIA v.
Sims, 471 U.S. 159, 167 (1985). Here, Plaintiff does not dispute that the NSA, the
statute on which Defendant relies in withholding information pursuant to Exemption 3,
qualifies as a withholding statute for purposes of FOIA. See, e.g., Wolf v. CIA, 473

F.3d 370, 373 (D.C.Cir. 2007) (acknowledging the NSA is an “exemption statute” as
contemplated by Exemption 3). Rather, Plaintiff asserts Defendant failed to adequately
explain why the information the FBI withheld pursuant to Exemption 3 “would reveal
intelligence sources and methods.” Plaintiff’s Response at 5. In further support of
summary judgment, Seidel avers that information withheld pursuant to Exemption 3
“describes specific intelligence methods used by the FBI to obtain information related to
national security investigations” and “[t]o further describe the withheld information on the
public record would reveal the very information the FBI is obligated to protect.” Seidel
Reply Declaration ¶ 7.
Significantly, within the context of national security, courts “‘must accord

substantial weight to an agency's affidavit concerning the details of the classified status
of the disputed record.’” Am. Civil Liberties Union v. Dep't of Justice, 681 F.3d 61, 69
(2d Cir. 2012) (citing Wolf, 473 F.3d at 374). In the instant case, Defendant, based on
Seidel’s averments in the Seidel Declaration and Seidel Reply Declaration, has
sufficiently established Exemption 3 applies to information withheld as within the
purview of the NSA, and Plaintiff has failed either to show Seidel’s averments are made
in bad faith, or to come forward with any tangible evidence showing Exemption 3 does

8 A “withholding statute” or “exemption statute” refers to a statute for which Exemption 3 requires
“particular types of matters to be withheld.” Spadaro v. United States Customs & Border Prot., 978 F.3d
34, 43 (2d Cir. 2020).
not apply. See Carney, 19 F.3d at 812 (requiring plaintiff make a showing of “bad faith
on the part of the agency sufficient to impugn the agency's affidavits or declarations, or
provide some tangible evidence that an exemption claimed by the agency should not
apply or summary judgment is otherwise inappropriate.”).

Accordingly, Defendant’s Motion is GRANTED with regard to information
withheld from disclosure pursuant to Exemption 3.
2. Exemption 5
The FBI withheld pursuant to Exemption 5 information asserted as protected
from disclosure as, inter alia, attorney work product including inter-agency documents
created at the direction of an attorney in reasonable anticipation of litigation.
Defendant’s Memorandum at 14-16. In opposition to summary judgment, Plaintiff
argues Defendant improperly invokes Exemption 5 because the withheld material does
not meet the criteria for the “attorney-client” privilege. Plaintiff’s Response at 5. In
further support of summary judgment, Defendant argues Plaintiff does not challenge the

information withheld pursuant to Exemption 5 as attorney work-product privilege but,
rather, asserts the withheld information is not protected by the attorney-client privilege.
Defendant’s Reply at 4-5.
FOIA Exemption 5 exempts from disclosure “inter-agency or intra-agency
memorandums or letters which 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). Accordingly, to qualify
for Exemption 5, a document must “satisfy two conditions: its source must be a
Government agency, and it must fall within the ambit of a privilege against discovery
under judicial standards that would govern litigation against the agency that holds it.”
Dep’t of Interior v. Klamath Water Users Protective Ass’n., 532 U.S. 1, 8 (2001).
“Courts have interpreted Exemption 5 to encompass traditional common-law privileges
against disclosure, including the work-product doctrine . . . .” Nat'l Council of La Raza v.
Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005). The work-product doctrine “prohibits

one party in litigation from discovering from its adversary any ‘documents and tangible
things that are prepared in anticipation of litigation or for trial by or for another party or
its representative,’ absent a showing of substantial need. Not only an attorney's mental
impressions and opinions about a case but also the results of the attorney's factual
investigations in anticipation of the case may constitute attorney work product.” N.Y.
Times Co. v. U.S. Dep’t of Justice, 939 F.3d 479, 489 (2019) (quoting In re Grand Jury
Subpoena Dated July 6, 2005, 510 F.3d 180, 183-84 (2d Cir. 2007)).
In the instant case, Plaintiff does not deny the source of the information withheld
pursuant to Exemption 5 is a government agency, i.e., the FBI. Nor does Plaintiff argue
such withheld information is not within the ambit of the asserted privilege, here, the

attorney work-product doctrine, but focuses, instead and perhaps erroneously, on the
criteria applicable to the attorney-client privilege. See Plaintiff’s Response at 5.
Nevertheless, a plain reading of the Seidel Declaration establishes that within the 500-
page sample constituting the Vaughn Index, the FBI relied on Exemption 5 to justify
withholding information including an FBI FD-302 interview form documenting the
interview of a witness by an Assistant United States Attorney (“AUSA”) and in the
presence of FBI Special Agents concerning an FBI investigation.” Seidel Declaration ¶
52. Such information “satisfies Exemption 5’s threshold because these records were
exchanged inter-agency (i.e., between the FBI and Executive Office for United States
Attorneys).” Id. Seidel further avers the records “were created at the direction of the
AUSA involved in criminal litigation reasonably anticipated to arise from the FBI’s
investigation,” and “contains the specific terms agreed to by the witness’s attorney and
the AUSA,” such that its release “would interfere with government attorneys’ ability to

properly prepare their legal theories and strategies and hinder them from providing the
best possible representation for their client, the United States Government.” Id. As
stated, Plaintiff, by limiting his response in opposition to summary judgment to the
criteria for the attorney-client privilege, provides no basis for challenging Defendant’s
explanation for withholding the information pursuant to Exemption 5 as attorney work-
product.
Accordingly, summary judgment accordingly is GRANTED in favor of Defendant
with regard to the information withheld pursuant to Exemption 5.
3. Exemptions 6 and 7(C)
FOIA Exemptions 6 and 7(C) are the asserted reasons for numerous redactions.

Vaughn Index, passim. In support of withholding information pursuant to these two
exemptions, Defendant argues the FBI balanced the privacy interests of the individuals
mentioned in the relevant records against any public interest in disclosure. Defendant’s
Memorandum at 18-19. Defendant further explains that because death typically
obviates privacy concerns, in balancing such interests, the FBI considered whether the
individuals for whom Plaintiff requested information were alive or dead. Id. In
opposition, Plaintiff argues he is not interested in the names or identifying information of
“third parties merely mentioned or of investigative intent,” nor is Plaintiff seeking the
identities of FBI professional staff or local law enforcement personnel; rather, Plaintiff
seeks only the names of certain retired FBI special agents who were either directly
involved in the investigation of Peltier, or have taken steps to block Peltier’s release
from prison, as well as “the names of deceased individuals connected to Peltier.”
Plaintiff’s Response at 6-9. According to Plaintiff, “[t]here remains a great deal of public

interest in the Peltier case,” id. at 7, “Plaintiff has and will continue to share information
released by the FBI with Peltier and the International Leonard Peltier Defense
Committee,” id., and Plaintiff “will continue to speak about the Peltier case and how the
FBI has targeted members of AIM, Black Panther Party, and others under its now
discredited Counterintelligence Program (COINTELPRO).” Id. According to Plaintiff,
some of the retired FBI special agents maintained a “high profile” with regard to the
Peltier case including maintaining blogs, speaking in public, and becoming involved in
litigation with Peltier such that the agents “cannot hide behind the shield” of FOIA
Exemptions 6(b) and 7(C). Id. at 7-9. In further support of summary judgment,
Defendant argues Plaintiff references “no caselaw supporting the proposition that FBI

special agents lose privacy protections just because they have retired or because they
have a ‘high profile’ as Plaintiff terms it,” and Plaintiff must demonstrate disclosure of
such information will further FOIA’s goals and avoid potential harm to the FBI.
Defendant’s Reply at 5. Defendant also notes that pages containing the names of
certain deceased individuals named by Plaintiff, including the now-deceased former FBI
Agents assigned to the Peltier investigation, were inadvertently redacted in the FBI’s
FOIA Responses, and will be reprocessed and released to Plaintiff provided the
information contained therein is not further protected from disclosure pursuant to
another FOIA exemption.9 Id. at 5 & n. 2.
As relevant here, FOIA Exemption 6 exempts from disclosure “personal 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). To determine whether
identifying information may be withheld pursuant to Exemption 6, the court “must: (1)
determine whether the identifying information is contained in ‘personnel and medical
files and similar files;’ and (2) balance the public need for the information against the
individual's privacy interest in order to assess whether disclosure would constitute a
clearly unwarranted invasion of personal privacy.” Associated Press v. U.S. Dep't of
Def., 554 F.3d 274, 291 (2d Cir. 2009) (citing and quoting Wood v. F.B.I., 432 F.3d 78,
86 (2d Cir. 2005)). “The determination of whether Exemption 6 applies requires
balancing an individual's right to privacy against the preservation of FOIA's basic
purpose of opening agency action to the light of public scrutiny.” Id. (citing Dep’t of the

Air Force v. Rose, 425 U.S. 352, 372 (1976) (“Exemption 6 does not protect against
disclosure every incidental invasion of privacy—only such disclosures as constitute
‘clearly unwarranted’ invasions of personal privacy.”)). “‘Only where a privacy interest is
implicated does the public interest for which the information will serve become relevant
and require a balancing of the competing interests.’” Id. (quoting Fed. Labor Relations
Auth. V. U.S. Dep’t of Veterans Affairs, 958 F.2d 503, 509 (2d Cir. 1992)). To prevail
over the public interest in disclosure, “[a]n invasion of more than a de minimis privacy
interest protected by Exemption 6 must be shown to be ‘clearly unwarranted.’” Id.

9 The court expects such reprocessing and release if warranted will occur within 90 days.
“Under Exemption 6, therefore, the government's burden in establishing the required
invasion of privacy is heavier than the burden in establishing invasion of privacy under
Exemption 7(C).” Id. (quoting United States Dep’t of State v. Ray, 502 U.S. 164, 172
(1991).

FOIA Exemption 7(C) similarly exempts from disclosure “records or information
compiled for law enforcement purposes, but only to the extent that the production of
such law enforcement records or information . . . (C) could reasonably be expected to
constitute an unwarranted invasion of personal privacy. . . . 5 U.S.C. § 552(b)(7)(C).
Exemption 7(C) may be invoked where no public interest would be served by disclosure
of information that implicates privacy interests. U.S. Dep’t of Justice v. Reporters
Committee for Freedom of Press, 489 U.S. 749, 775 (1989) (“RCFP”) (denying
disclosure of contents of FBI rap sheet to third party because the disclosure reasonably
could be expected to constitute an invasion of personal privacy within the meaning of
FOIA’s law enforcement exemption). In particular, in RCFP, the court determined that

although there may be “some public interest in providing interested citizens with
answers to their questions” about the subject of the FOIA request, such as deciding
whether to offer the subject employment, to rent him a house, or to extend him credit,
“that interest falls outside the ambit of the public interest that the FOIA was enacted to
serve.” RCFP, 489 U.S. at 775. “Thus whether disclosure of a private document under
Exemption 7(C) is warranted must turn on the nature of the requested document and its
relationship to “the basic purpose of the Freedom of Information Act ‘to open agency
action to the light of public scrutiny,’ rather than on the particular purpose for which the
document is being requested.” Id. at 772 (quoting Rose, 425 U.S. at 372).
In the instant case, insofar as Defendant agreed to reprocess records responsive
to Plaintiff’s FOIA Request containing the names of now-deceased FBI Special Agents
and to release such information provided the information is not exempt from disclosure
pursuant to another FOIA Exemption, Defendant’s Reply at 5 & n. 2, summary judgment

is moot and the court considers only whether the FBI properly invoked Exemptions 6(b)
and 7(C) to withhold pages responsive to the FOIA Request pertaining to the retired FBI
Special Agents.
The Second Circuit Court of Appeals recognizes that government investigative
personnel may be subject to harassment or embarrassment if their identities are
disclosed. Wood, 432 F.3d at 78 (citing Halpern v. FBI, 181 F.3d 279, 297 (2d
Cir.1999) (holding that FBI agents and other government employees have an interest
against the disclosure of their identities to the extent that disclosure might subject them
to embarrassment or harassment in their official duties or personal lives); and Massey v.
FBI, 3 F.3d 620, 624 (2d Cir.1993) (same)). Accordingly, “[t]his interest against possible

harassment and embarrassment of investigative personnel raises a measurable privacy
concern that must be weighed against the public's interest in disclosure.” Id. When
determining the public's interest in disclosure of a government employee's identity,
several factors must be considered “including the employee's rank and whether the
information sought sheds light on government activity.” Id. (citing Perlman v. U.S. Dep’t
of Justice, 312 F.3d 100, 107 (2d Cir. 2002) (applying a five-factor test where the
government employee is the subject of an investigation), vacated, 541 U.S. 970 (2004),
reaffirmed, 380 F.3d 110 (2d Cir. 2004)).
Although in the instant case, Plaintiff names books, a lawsuit, and other court
proceedings in which several of the now-retired FBI Special Agents were involved to
establish such agents “have maintained a high profile as it relates to the Peltier case,”
including Joseph H. Trimbach, Edward Woods, David Price, Larry W. Langberg, J. Gary

Adams, Norman Zigrossi, and Rachel Held, Plaintiff’s Response at 8-9, Plaintiff
references no caselaw establishing such public involvement in tangential matters
relative to Peltier’s prosecution justifies releasing information pertaining to these
individual’s private involvement, in their occupational roles as Special Agents, in
investigating Peltier with regard to the Pine Ridge shootout incident for which Peltier
was prosecuted and remains incarcerated. Nor does Plaintiff reference any authority for
the novel proposition that the retirement of such individuals obviates the need for
continued protection pursuant to Exemptions 6(b) and 7(C), and the court does not
perceive how retirement renders irrelevant the need for former FBI Special Agents to
maintain privacy in contrast to deceased agents whose privacy interests wane upon

death. Nor has Plaintiff cited any case supporting that the retired agents’
“outspokenness” in their employment, working in retirement, and defending themselves
in litigation involving Peltier will reveal the FBI’s operations and activities, the only
relevant public interest against which the retired agents’ privacy interests must be
weighed. See Wood, 432 F.3d at 89 (citing Ray, 502 U.S. at 179; and Nat'l Archives &
Records Admin. v. Favish, 541 U.S. 157, 174 (2004) (citing Ray and holding, pursuant
to Exemption 7(C), “the requester must produce evidence that would warrant a belief by
a reasonable person that the alleged Government impropriety might have occurred”)).
Here, Plaintiff references no evidence of government wrongdoing that the retired FBI
Special Agents, in the course of investigating Peltier, were negligent or biased in the
performance of their duties. Moreover, because Plaintiff is already in possession of the
names of the FBI Special Agents who investigated Peltier, such further disclosure,
without any indication of wrongdoing, would be a “clearly unwarranted invasion of

privacy,” supporting the withholding of the information pursuant to Exemption 6 to FOIA.
Summary judgment with regard to information withheld pursuant to FOIA
Exemptions 6 and 7(C) is accordingly GRANTED.
4. Exemption 7(D)
Information was redacted from several serials RIP or WIF pursuant to FOIA
Exemption 7(D) which exempts from disclosure
[R]ecords or information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or information . . . (D)
could reasonably be expected to disclose the identity of a confidential source,
including a State, local, or foreign agency or authority or any private institution
which furnished information on a confidential basis, 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).
According to Defendant, the information redacted pursuant to Exemption 7(D) in
response to Plaintiff’s FOIA Request concerns a criminal investigation conducted by the
FBI and includes information pertaining to confidential sources. Defendant’s
Memorandum at 19-21. In opposition, Plaintiff argues the FBI’s assertion of Exemption
7(D) is unwarranted insofar as Defendant withheld information pertaining to several
individuals whose work as Confidential Human Sources (“CHSs”) has been officially
confirmed, including Douglass F. Durham (“Durham”), Darlene Nichols-Ecoffey
(“Nichols-Ecoffey”), who also use, respectively, the pseudonyms Sierra (“Sierra”), and
Maverick (“Maverick”), and one Serle Chapman (“Chapman”). Plaintiff’s Response at 9-
10; Second Kuzma Affidavit ¶¶ 23-25. Plaintiff thus seeks the confidential source file
numbers and confidential source symbol numbers10 for these CHSs. Id. Plaintiff further
maintains that because following the Pine Ridge shootout, Peltier fled to Canada where

he was arrested on February 6, 1976, after the Canadian government cooperated with
the FBI, the FBI was unwarranted in excising from the FOIA Responses information
pertaining to Canada and its law enforcement agencies including the Royal Canadian
Mounted Police. Id. at 10. In reply, Defendant argues that despite Plaintiff’s assertion
that Durham/Sierra, Nichols-Ecoffey/Maverick, and Chapman were government
informants, Plaintiff’s information fails to show the Defendant has officially
acknowledged such individuals are confidential sources, Defendant’s Reply at 6-7, and
the information withheld by the FBI regarding the Canadian Mounted Police is not
directly related to Peltier’s arrest and extradition to the United States. Id. at 7.
As discussed, Discussion, supra, at 14-15, 18, affidavits submitted by an agency

regarding the agency’s search for documents responsive to a FOIA request “are
accorded a presumption of good faith” so long as such affidavits “are adequate on their
face.” Nat. Res. Def. Council, Inc., 36 F. Supp.3d at 398. Further, once the agency has
met its burden, to show that a claimed exemption should not apply or that summary
judgment based on the affidavit is otherwise inappropriate, “the plaintiff must make a

10 Confidential “source file numbers” and “source symbol numbers” refer to administrative tools that
facilitate the retrieval of information, responsive to a FOIA request, supplied by a confidential source while
further obscuring such source’s identity. Seidel Declaration ¶¶ 70-73. Each confidential source file
number is unique to a particular confidential source and is used only in documentation relating to that
confidential source. Id. ¶ 70. When a confidential source reports information to the FBI on a regular
basis pursuant to an express assurance of confidentiality, such source is considered a confidential human
source (“CHS”) to whom the FBI assigns a permanent source symbol number which the FBI then uses
when referring to the CHS to obscure the CHS’s identity. Id. ¶¶ 70, 72.
showing of bad faith on the part of the agency sufficient to impugn the agency's
affidavits or declarations, or provide some tangible evidence” contradicting the
exemption’s application. Id. (citations omitted). In the instant case, Seidel avers the
individuals whose identities and the information provided were withheld pursuant to

Exemption 7(D) as CHSs was justified by the FBI’s need to protect such sources and
preserve the FBI’s ability to recruit and maintain reliable sources to successfully
investigate crimes. Seidel Declaration ¶¶ 70-83. Similarly, insofar as information
pertaining to assistance from foreign governments was withheld pursuant to Exemption
7(D), the release of the identity of foreign government agencies, identity of their
personnel, and information provided in confidence “could greatly harm the FBI’s
effectiveness in preventing or investigating violations of federal law.” Id. ¶¶ 84-86.
As Seidel explains, numerous confidential sources report to the FBI on a regular
basis, providing information under the FBI’s implied and express assurances of
confidentiality and thus as “informants” within the common meaning of the term, i.e.,

confidential sources as covered by Exemption 7(D), whereas others provide information
pursuant to “implied assurances of confidentiality.” Seidel Declaration ¶ 68. Under
either set of circumstances, the sources providing the information are considered
“confidential” because they provide information only with the understanding that their
identities and the information they provide will not be divulged outside the FBI. Id. In
this case, six different categories of information were withheld pursuant to Exemption
7(D) including (1) confidential source file numbers pursuant to Exemption 7(D)-1, Seidel
Declaration ¶¶ 70-71; (2) confidential source symbol numbers pursuant to Exemption
7(D)-2, id. ¶¶ 72-73; (3) names and other identifying information of, and information
provided by, sources under an express assurance of confidentiality pursuant to
Exemption 7(D)-3, id. ¶¶ 74-77; (4) names and other identifying information of, and
information provided by, local law enforcement agencies pursuant to Exemption 7(D)-5,
id. ¶¶ 78-80, (5) names and other identifying information of, and information provided

by, individuals under an implied assurance of confidentiality pursuant to Exemption
7(D)-6, id. at 81-83; and (6) identifying information of an informant provided by foreign
government agencies under an express assurance of confidentiality pursuant to
Exemptions 7(D)-4 and 7(D)-7. Id. ¶¶ 84-86. With regard to each of these six
subcategories, Seidel emphasizes the need not to divulge information that could result
in harassment or retaliation against the confidential sources by individual investigative
subjects for whom they provided information that is critical to the FBI’s investigations.
Seidel Declaration ¶¶ 70-86. Significantly, Plaintiff again fails to provide anything
contradicting Seidel’s averments regarding the critical need to withhold such information
from disclosure to ensure the FBI continues to have access to information provided by

the various confidential sources under express or implied assurances of confidentiality.
Nat. Res. Def. Council, Inc., 36 F. Supp.3d at 398. Accordingly, summary judgment is
GRANTED in favor of Defendant based on its withholding of information pursuant to
Exemption 7(D).
5. Exemption 7(E)
Information in several serials was redacted and withheld from disclosure
pursuant to FOIA Exemption 7(E) which exempts
[R]ecords or information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or information . . . (E)
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).
“Exemption (b)(7)(E) covers investigatory records that disclose investigative techniques
and procedures not generally known to the public.” Doherty v. U.S. Dep’t of Justice, 77
F.2d 49, 52 & n. 4 (2d Cir. 1985). “The Second Circuit has explained that, as used in
Exemption 7(E), a ‘technique’ is ‘a technical method of accomplishing a desired aim’
and a ‘procedure’ is ‘a particular way of doing something or going about the
accomplishment of something.’” American Civil Liberties Union Foundation v. Dep’t of
Homeland Security, 243 F.Supp.3d 393, 402 (S.D.N.Y. 2017) (quoting Allard K.
Lowenstein Intern. Human Rights Project v. Dep’t of Homeland Security, 626 F.3d 678,
681 (2d Cir. 2010)). “Accordingly, to invoke Exemption 7(E) here, the agency must
justify its assertion that its practice . . . at issue in this motion actually shows a
‘technique’ or ‘procedure’ and that it is not already known to the public.” Id.
Nevertheless, “[w]hile the government retains the burden of persuasion that the
information is not subject to disclosure under FOIA, ‘a party who asserts that the
material is publicly available carries the burden of production on that issue.’” Inner City
Press/Community on the Move v. Board of Governors of the Federal Reserve System,
463 F.3d 239, 245 (2d Cir. 2006) (quoting Davis v. U.S. Dep’t of Justice, 968 F.2d 1276,

1279 (D.C.Cir. 1992)). Somewhere within either the Vaughn Index or Defendant’s
affidavit, Defendant must provide, “a sufficiently specific link” between disclosing the
particular withheld information and revealing how, and to what extent, the Defendant
relies on such information in its investigations. Island Film, S.A. v. Dep’t of the
Treasury, 869 F.Supp.2d 123, 138 (D.D.C. 212). “‘[I]t is well-established that ‘an
agency does not have to release all details concerning law enforcement techniques just
because some aspects of them are known to the public.’” Kuzma v. U.S. Dep’t of
Justice, 2016 WL 9446868, at *12 (W.D.N.Y. Apr. 18, 2016) (quoting Bishop v. U.S.
Dep’t of Homeland Security, 45 F.Supp.3d 380, 391 (S.D.N.Y. 2014)). Moreover,

“Exemption 7(E) sets a relatively low bar for the agency to justify withholding” and “only
requires that the agency demonstrate logically how the release of the requested
information might create a risk of circumvention of the law.” Blackwell v. F.B.I., 646
F.3d 37, 42 (D.C. Cir. 2011) (internal quotation marks, brackets, and citation omitted).
In the instant case, Defendant argues in support of summary judgment that the
FBI withheld information pursuant to FOIA Exemption 7(E) “to protect non-public
investigative techniques and procedures utilized by the FBI to conduct its law
enforcement function, and to protect non-public details about techniques and
procedures that are otherwise known to the public.” Defendant’s Memorandum at 21-
22. In particular, the FBI invoked Exemption 7(E) to withhold sensitive investigation file

numbers, collection and analysis of information including database information and
search results, surveillance techniques, and monetary payments. Id. at 22 (citing Seidel
Declaration ¶¶ 89-100. In opposition to summary judgment, Plaintiff clarifies he
contests the FBI’s reliance on Exemption 7(E) “to protect investigative database and
database search results, surveillance techniques, and monetary payments.” Plaintiff’s
Response at 10-13. In further support of summary judgment, Defendant argues Seidel
has already sufficiently explained that providing the challenged information risks
exposing the FBI’s investigative techniques to criminals circumventing the law.
Defendant’s Reply at 8 (citing Seidel Declaration ¶¶ 94-98). With regard to information
concerning targets, locations, and types of devices used in surveillance operations used
in investigation, Plaintiff argues such information should not be withheld when the
investigations were improperly conducted, yet fails to point to anything indicating such
investigation used illegal or unauthorized surveillance techniques, id. at 8, and that

caselaw supports the FBI’s withholding of information regarding monetary payments.
Id. at 9.
With regard to the FBI’s non-public database search results, Seidel avers in
further support of summary judgment that the FBI withheld the identities of sensitive
investigative databases used by the FBI for official law enforcement purposes, and the
search results of such databases, and that releasing the identities of the databases or
the search results would give criminals insight into the tools and resources available to
the FBI to conduct criminal and national security investigations, such as the scope of
information stored in the databases, how the FBI uses the databases to support its
investigations, what information is most valuable to the FBI for particular investigations,

and the databases’ vulnerabilities. Seidel Reply Declaration ¶¶ 13-14. Disclosing
search results would also provide criminals with an understanding of the scope of FBI-
collected intelligence on particular subjects and expose possible intelligence gaps,
which would allow criminals to exploit strengths and weaknesses and avoid detection or
disruption by the FBI. Id. ¶ 15. Revealing the types of information stored in the
databases would reveal what information is most useful to FBI investigators and permit
criminals to deploy countermeasures depriving the FBI of useful intelligence or
evidence, jeopardizing investigations. Id. Disclosing search results pertaining to a
specific subject would alert criminals to the scope of FBI-collected information and
provide criminals with insight into the FBI’s investigative strategies and the opportunity
to corrupt or destroy information stored in the databases. Id. ¶¶ 15-16. Because the
records show the FBI used a variety of non-public databases to support its
investigations relating to Peltier, disclosing the identities of the databases and results

stands to aid criminals, id. ¶ 17, such that release of the information relative to the FBI
investigative databases would impede the FBI’s effectiveness and aid in circumventing
valuable investigative techniques. Id. ¶ 18-19. The court finds that Defendant, through
the Seidel Reply Declaration, provides a sufficient explanation linking disclosure of the
non-public databases and results of searches of such databases to the risk of
circumventing the law such that the FBI properly withheld such information pursuant to
Exemption 7(E).
With respect to the monetary payments requested by FBI personnel and paid by
the FBI to implement particular investigative techniques, Seidel avers the FBI has
limited resources it must strategically allocate to effectively pursue the FBI’s mission

and that revealing such payments would also reveal the FBI’s level of focus on certain
types of law enforcement and intelligence gathering efforts, thereby revealing the FBI’s
strategic allocation of its limited resources and identify the FBI’s priorities within the
spectrum of illegal activities the FBI investigates. Seidel Reply Affidavit ¶¶ 20-21.
Seidel continues that releasing such information would enable criminals to structure
their activity so as to manipulate the FBI’s ability to focus on its investigative priorities,
as well as reveal the FBI’s budgetary limitations which may affect its investigations,
thereby enabling criminals to circumvent the law. Id. ¶ 21. Here, Defendant has met
the “low bar” of showing that disclosure of monetary payment information would create
the risk of circumvention of law such that the monetary payment information was
properly withheld under Exemption 7(E). See Mermerlstein, 2021 WL 3455314, at *15
(citing Poitras v. Dep't of Homeland Sec., 303 F. Supp. 3d 136, 159 (D.D.C. 2018)
(information reflecting monetary payments for investigative techniques were properly

withheld under Exemption 7(E)). Accordingly, the court finds the FBI properly withheld
information pursuant to Exemption 7(E).
Summary judgment regarding information withheld pursuant to Exemption 7(E) is
therefore GRANTED as to Defendant.

CONCLUSION

Based on the foregoing, Defendant’s Motion (Dkt. 23) is GRANTED. The Clerk
of Court is directed to close the file.
SO ORDERED.

/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE

DATED: December 7th, 2021
Buffalo, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364478. Public record. Not legal advice.