O'BRIEN v. DEPARTMENT OF JUSTICE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM J. O’BRIEN, III, CIVIL ACTION

Plaintiff,

v.

DEPARTMENT OF JUSTICE, NO. 20-0092

Defendant.

MEMORANDUM OPINION

Plaintiff William J. O’Brien III and his employee, Angela Rongione, were once co-

defendants in a criminal suit. Rongione testified against O’Brien at trial and in June 2016, he

was convicted of causing a death through the illegal distribution of controlled substances.

O’Brien is currently serving a 30-year sentence, but firmly maintains his innocence. In 2019,

O’Brien submitted a request for information to the FBI pursuant to the Freedom of Information

Act, 5 U.S.C. § 552 et seq. (“FOIA”). He asked for all FBI records on his case that referenced

Rongione prior to January 20, 2015. The FBI conducted a search for the requested records and

eventually released 47 pages in full. The agency relied on statutory exemptions contained in

Section 552(b) of FOIA to withhold 197 pages and redact 113 pages. O’Brien sued the United

States Department of Justice (the “Government”), challenging the FBI’s application of FOIA’s

exemptions.

The Parties filed cross-motions for summary judgment. To explain its application of each

FOIA exemption, the Government submitted two declarations by Michael G. Seidel, the Section

Chief of the FBI’s Record/Information Dissemination Section. Its reasoning for redacting or

withholding each document was further documented in a Vaughn index (the “First Vaughn

Index”).1 On April 14, 2022, this Court issued an order acknowledging that a district court must

have “sufficient factual basis to rule on the applicability of exemptions claimed by the

government” and requiring the Parties to file supplemental briefing concerning the

Government’s justification for withholding in full 33 pages identified in the First Vaughn Index

as containing third-party information (ECF No. 57 (citing McDonnell v. United States, 4 F.3d

1227 (3d Cir. 1993) and Davin v. DOJ, 60 F.3d 1043 (3d Cir. 1995))). The Government’s

supplemental brief was accompanied by Seidel’s Third Declaration, the Supplemental Vaughn

Index, and newly-redacted copies of 30 pages that it had previously withheld in full.

For the reasons that follow, the Government’s Motion for Summary Judgment will be

granted and O’Brien’s Motion for Summary Judgment will be denied.

LEGAL STANDARDS

To prevail on a summary judgment motion, “the movant must show that ‘there is no

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

matter of law.’” Nat’l State Bank v. Fed. Rsrv. Bank of N.Y., 979 F.2d 1579, 1581 (3d Cir. 1992)

(quoting Fed. R. Civ. P. 56(c)). “[A] nonmoving party must adduce more than a mere scintilla of

evidence in its favor, and cannot simply reassert factually unsupported allegations contained in

its pleadings.” Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citations

omitted). “[C]ourts are required to view the facts and draw reasonable inferences ‘in the light

most favorable to the party opposing the [summary judgment] motion.’” Scott v. Harris, 550

U.S. 372, 378 (2007) (alteration in original) (quoting United States v. Diebold, Inc., 369 U.S.

1 “A Vaughn index is an affidavit which supplies an index of withheld [and redacted] documents and details the

agency’s justification for claiming exemption.” Patterson ex rel. Patterson v. FBI, 893 F.2d 595, 599 n.7 (3d Cir.

1990) (citing Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)). Ordinarily, “a Vaughn index correlating

justifications for non-disclosure with the particular portions of the documents requested will generally suffice to

narrow the disputed issues and permit a reasoned disposition by the district court.” Id. at 599.

654, 655 (1962) (per curiam)).

Congress enacted FOIA “to facilitate public access to Government documents.” U.S.

Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). But public access is not “all encompassing.”

Sheet Metal Workers Int’l Ass’n, Loc. Union No. 19 v. U.S. Dep’t of Veterans Affs., 135 F.3d

891, 897 (3d Cir. 1998) (citation omitted). FOIA exempts nine categories of documents from

public disclosure. Id.2 In the application of these exemptions, FOIA “places the burden on the

agency to justify the withholding [or redaction] of any requested documents.” Ray, 502 U.S. at

173; 5 U.S.C. § 552(a)(4)(B).

“The agency may meet this burden by filing affidavits describing the material withheld

and detailing why it fits within the claimed exemption.” McDonnell, 4 F.3d at 1241 (citing King

v. DOJ, 830 F.2d 210, 217-18 (D.C. Cir. 1987) (“The significance of agency affidavits in a FOIA

case cannot be underestimated.”)). “If an agency’s affidavit describes the justifications for

withholding the information with specific detail, demonstrates that the information withheld

logically falls within the claimed exemption, and is not contradicted by contrary evidence in the

record or by evidence of the agency’s bad faith, then summary judgment is warranted on the

basis of the affidavit alone.” ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011);

see also Quinon v. FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996) (summary judgment is appropriate

without in camera review if this standard is satisfied).3

2 At a high level, those nine categories are: (1) matters authorized to be kept secret by an Executive Order;

(2) matters “related solely to the internal personnel rules and practices of an agency”; (3) matters “specifically

exempted from disclosure by statute”; (4) trade secrets and privileged or confidential commercial or financial

information; (5) inter-agency or intra-agency memorandums or letters; (6) personnel, medical, and similar files;

(7) records or information compiled for law enforcement purposes; (8) records of an agency responsible for the

regulation or supervision of financial institutions; and, (9) geological and geophysical information and data

concerning wells. 5 U.S.C. § 552(b).

3 While district courts may conduct in camera review of the documents at issue, this manner of resolving a case

“runs counter to the fundamental principles on which our adversary system is based” and should be done “only

Agency declarations enjoy a presumption of good faith. SafeCard Servs., Inc. v. SEC,

926 F.2d 1197, 1200 (D.C. Cir. 1991). That presumption cannot be overcome by “purely

speculative claims about the existence and discoverability of other documents.” Id. (quoting

Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). “Ultimately, an

agency’s justification for invoking a FOIA exemption . . . is sufficient if its appears ‘logical’ or

‘plausible.’” ACLU v. CIA, 710 F.3d 422, 427 (D.C. Cir. 2013) (quoting Wolf v. CIA, 473 F.3d

370, 374-75 (D.C. Cir. 2007)).

DISCUSSION

In this case, neither party alleges the existence of any disputed material facts—their

disagreements center on the application of FOIA as a matter of law. In withholding and/or

redacting certain documents requested by O’Brien, the Government invoked five statutory

exemptions: (1) information protected by statute (5 U.S.C. § 552(b)(3)); (2) confidential source

information (Id. § 552(b)(7)(D)); (3) personal privacy (Id. § 552(b)(6), (7)(C)); (4) pending law

enforcement proceedings (Id. § 552(b)(7)(A)); and, (5) investigative techniques and procedures

(Id. § 552(b)(7)(E)). Each exemption will be addressed in turn below.

A. Exemption (b)(3): Information Protected by Statute

Exemption (b)(3) protects certain information “specifically exempted from disclosure by

statute.” 5 U.S.C. § 552(b)(3). Seidel explained that the FBI invoked this exemption pursuant to

Federal Rule of Criminal Procedure 6(e), as modified by Congress (pertaining to the secrecy of

grand jury matters), and the Juvenile Justice and Delinquency Prevention Act, 18 U.S.C. § 5038

(protecting certain information related to juvenile adjudications). Both statutes qualify for

where it is unavoidable.” Senate of P.R. ex rel. Judiciary Comm., 823 F.2d 574, 588-89 (D.C. Cir. 1987) (quoting

Crooker v. ATF, 789 F.2d 64, 67 (D.C. Cir. 1986). Here, the Government’s Vaughn indexes and declarations

provide a sufficient factual basis for the Court’s decision, such that in camera review was avoidable.

protection under this exemption. McDonnell, 4 F.3d at 1247, 1249.

O’Brien argues that none of the withheld or redacted pages expressly invoked this

exemption and that the Government’s explanations are “untrue.” O’Brien’s first argument is not

supported by the record—Seidel provided the Bates numbers of the documents to which this

exemption was applied, and the relevant documents are identified in the Government’s First

Vaughn Index (Nos. 55, 211-268, and 270-291). Nor can O’Brien overcome the presumption of

good faith with speculative claims of untruth. See SafeCard Servs., 926 F.2d at 1200 (quoting

Ground Saucer Watch, 692 F.2d at 771). The Government has carried its burden as to

Exemption (b)(3).

B. Exemption (b)(7)(D): Confidential Informants

Exemption (b)(7)(D) “exempts from disclosure agency records ‘compiled for law

enforcement purposes . . . by criminal law enforcement authority in the course of a criminal

investigation’ if release of those records ‘could reasonably be expected to disclose’ the identity

of, or information provided by, a ‘confidential source.’” DOJ v. Landano, 508 U.S. 165, 167

(1993) (quoting 5 U.S.C. § 552(b)(7)(D)). “Exemption 7(D) requires no balancing of public and

private interests.” Roth ex rel. Bower v. DOJ, 642 F.3d 1161, 1184 (D.C. Cir. 2011). “If the

FBI’s production of criminal investigative records ‘could reasonably be expected to disclose the

identity of a confidential source’ or ‘information furnished by’ such a source, that ends the

matter, and the FBI is entitled to withhold the records under Exemption 7(D).” Id. at 1184-85.

“[T]he government bears the burden of establishing that Exemption 7(D) applies.” Davin, 60

F.3d at 1061 (citing Landano, 508 U.S. at 171).

Seidel’s declarations carry the Government’s burden. He explained that the FBI applied

Exemption (b)(7)(D) to two different kinds of confidential sources: those who provided

information under express assurances of confidentiality and those who provided information

under implied assurances of confidentiality. The FBI identified which informants fell into the

first category by “locat[ing] positive indicators they were official, established FBI informants.”

For example, Seidel explained that a source is considered to be operating under an express

assurance of confidentiality if he or she is described in the records as a “Confidential Human

Source” or “CHS,” because that designation is a “positive indication these individuals entered

into official, confidential relationships with the FBI in which they would have, by standard FBI

practice, been provided with express assurances of confidentiality.” Individuals identified by

their “source symbol numbers”—numbers assigned “to CHSs who report information to the FBI

on a regular basis under express assurances of confidentiality”—fall into the same category, as

do those whose official CHS forms are stamped with the words “Protect Identity.”4 Release of

this information, Seidel warned, would endanger CHSs and harm the FBI’s ability to “recruit and

maintain reliable CHSs.” For example, “[r]epeated release of their numbers, within the context

of certain events/in association with certain singular information, could enable criminals and

those familiar with these matters to pinpoint who could possibly have been present at certain

events or could possibly have known different pieces of information.”

As to implied confidentiality, Seidel explained that some individuals provided

information to the FBI about investigative targets involved in the distribution of controlled

substances only because they believed their cooperation and the information they shared would

remain confidential. The FBI inferred this belief based on three circumstances: (1) the

“singularity of the information provided and the likelihood these individuals could be identified”

4 In his Third Declaration, Seidel explained that “it is the standard practice of [the Record/Information

Dissemination Section] to treat the caveat of ‘Protect Identity’ as an indication that an express assurance of

confidentiality was provided.”

through its release; (2) the “proximity of these sources to the investigative subjects and events

they described”; and, (3) the nature of the criminal acts described. See Landano, 508 U.S. at 181

(circumstances such as “the nature of the crime investigated and the witness’ relation to it” may

support an inference of confidentiality).

As to the consequences of divulging identifying information about such sources, Seidel

explained that these individuals are at risk of harm because “they were within the orbit of

suspected violent criminals,” who, in the FBI’s experience, “typically seek to deter informants’

cooperation with law enforcement through reprisal,” whether reputational, economic, or violent.

O’Brien does not generally challenge the FBI’s determination that its sources shared

information with an expectation of confidentiality. He is focused only on Rongione, asserting

that she denied being a confidential source at their criminal trial and therefore the Government

cannot now protect her information by claiming that she is a confidential source. He also

contends that, because Rongione testified at trial, the FBI cannot invoke this exemption to shield

her.

O’Brien’s arguments rest on an assumption that Rongione is the confidential informant

whose information the FBI has not disclosed. But in invoking Exemption (b)(7)(D), the

Government neither confirmed nor denied the identity of any particular confidential source. This

is known as a “Glomar response” because the CIA once refused to confirm or deny the existence

of records concerning a ship called the Hughes Glomar Explorer, on the grounds that to do so

would compromise national security or reveal intelligence sources and methods. See Phillippi v.

CIA, 655 F.2d 1325 (D.C. Cir. 1981). “An agency may issue a Glomar response when ‘to

answer the FOIA inquiry would cause harm cognizable under’ an applicable statutory

exemption.” Elec. Priv. Info. Ctr. v. Nat’l Sec. Agency, 678 F.3d 926, 931 (D.C. Cir. 2012)

(quoting Wolf, 473 F.3d at 374). “The agency must demonstrate that acknowledging the mere

existence of responsive records would disclose exempt information.” Id. “In Glomar cases,

courts may grant summary judgment on the basis of agency affidavits that contain ‘reasonable

specificity of detail rather than merely conclusory statements, and if they are not called into

question by contradictory evidence in the record or by evidence of agency bad faith.’” Id.

(quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)).

The FBI’s refusal to confirm or deny the identity of its confidential sources is appropriate

because this information is explicitly shielded from disclosure by FOIA, 5 U.S.C.

§ 552(b)(7)(D), and Seidel’s declarations adequately explained both how the agency determined

whether an individual qualified as a confidential source and the harm that would result if the FBI

did not use a Glomar response.

C. Exemptions (b)(6) and (b)(7)(C): Privacy

Exemption (b)(6) protects from disclosure “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).5 Exemption (b)(7)(C) protects law enforcement records to the extent that

their production “could reasonably be expected to constitute an unwarranted invasion of personal

privacy.” Id. § 552(b)(7)(C). Although Exemption (b)(7)(C) is “somewhat broader” than

Exemption (b)(6) in some respects, DOJ v. Reps. Comm. for Freedom of the Press, 489 U.S. 749,

756 (1989), both statutes balance the individual privacy interest against the public interest in

disclosure. Beck v. DOJ, 997 F.2d 1489, 1491 (D.C. Cir. 1993).

i. The Privacy Interests

5 “The Supreme Court has interpreted the phrase ‘similar files’ to include all information that applies to a particular

individual.” Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999) (citing U.S. Dep’t of State v. Washington Post

Co., 456 U.S. 595, 602 (1982)).

FOIA recognizes an individual’s privacy interest in avoiding disclosure of personal

matters and in “making certain kinds of important decisions.” Reps. Comm., 489 U.S. at 762.

“[T]hird parties, witnesses, and informants mentioned in investigatory files maintain a privacy

interest in keeping secret the fact that they were subjects of a law enforcement investigation.”

Bartko v. DOJ, 898 F.3d 51, 71 (D.C. Cir. 2018) (cleaned up) (quoting Nation Mag. v. U.S.

Customs Serv., 71 F.3d 885, 894 (D.C. Cir. 1995)). “For that reason, the FBI is permitted ‘to

withhold information identifying private citizens mentioned in law enforcement records, unless

disclosure is ‘necessary in order to confirm or refute compelling evidence that the agency is

engaged in illegal activity.’” Id. (quoting Schrecker v. DOJ, 349 F.3d 657, 661 (D.C. Cir.

2003)). “That privacy protection also extends to law-enforcement personnel who do not forgo

altogether any privacy claim in matters related to official business.” Id. (cleaned up) (quoting

Lesar v. DOJ, 636 F.2d 472, 487 (D.C. Cir. 1980)).

Seidel explained that the FBI invoked Exemption (b)(6) and (b)(7)(C) to protect the

privacy interests of nine different subcategories: (1) FBI agents and staff; (2) third parties who

provided information to the FBI; (3) third parties mentioned tangentially; (4) personnel from

other federal agencies; (5) local law enforcement; (6) third-party victims; (7) rap sheets; (8) third

parties of investigative interest to the FBI; and, (9) commercial institution personnel. The First

Vaughn Index and the Supplemental Vaughn Index identify which subcategory the FBI considers

to be protected by the application of these exemptions to a given document. Seidel’s

declarations explain the balancing performed by the FBI in deciding when to assert these privacy

exemptions as to each subcategory, including measures taken by the agency to determine

whether an individual was still living, whether the FBI employees at issue were “high-level

decision makers” (whose information would be released) or “lower echelon employees” (whose

privacy is protected), and the harm likely to result from disclosure of each subcategory of

information.

Seidel further explained that, despite the FBI’s general policy of issuing Glomar

responses to requests for information about third parties (absent a privacy waiver, proof of death,

or a significant public interest), the agency determined that a Glomar response as to Rongione

would not be appropriate under Exemptions (b)(6) and (b)(7)(C) because “Plaintiff’s request

implicated a criminal case file in which Rongione was publicly and officially acknowledged as a

co-defendant.” Therefore, the FBI acknowledged the existence of responsive records for

Rongione. Nevertheless, the FBI took the view that “Rongione’s diminished privacy did not

completely negate Rongione’s privacy interest in specific non-public details about herself

contained within FBI records.” It therefore applied Exemptions (b)(6) and (b)(7)(C) to withhold

non-public details within records concerning Rongione.

O’Brien only challenges the FBI’s assertion of privacy interests with respect to

Rongione, arguing that, because she testified at his criminal trial, she has no legitimate privacy

interest in her FBI records. O’Brien’s argument goes too far. An individual may hold a

cognizable privacy interest even in information previously disclosed to the public. Reps. Comm.,

489 U.S. at 762-63 (rejecting the “cramped notion of personal privacy” that would characterize

an individual’s privacy interest in his rap sheet as “zero” just because it was previously disclosed

to the public). “[T]he fact that ‘an event is not wholly “private” does not mean that an individual

has no interest in limiting disclosure or dissemination of the information.’” Id. at 770 (citation

omitted).

For example, a politician who made public statements about his cooperation with a DOJ

investigation was found to have lessened his privacy interests in the fact that he was under

investigation, but retained his privacy interest in the contents of the investigative files. Citizens

for Resp. & Ethics in Wash. v. DOJ, 746 F.3d 1082, 1092 (D.C. Cir. 2014). And two Circuit

Courts have specifically held that an individual does not lose all of his or her privacy rights in

federal administrative records upon testifying in court. See Jones v. FBI, 41 F.3d 238, 246-47

(6th Cir. 1994) (individuals who testified at requester’s habeas hearing did not thereby waive

their privacy rights under FOIA); Irons v. FBI, 880 F.2d 1446, 1456 (1st Cir. 1989) (en banc)

(public testimony by confidential sources does not waive the FBI’s right to withhold information

covered by Exemption (b)(7)(D) “beyond what has been actually disclosed in the source’s prior

public testimony”).6

Under these precedents, Rongione has a privacy interest in the non-disclosure of records

containing non-public details about her.

ii. The Public Interest

Exemptions (b)(6) and (b)(7)(C) protect records from disclosure only if the invasion of

privacy is “unwarranted.” 5 U.S.C. §§ 552(b)(6), (b)(7)(C). “[W]hether an invasion of privacy

is warranted cannot turn on the purposes for which the request for information is made” or on

the “identity of the requesting party.” Reps. Comm., 489 U.S. at 771 (emphasis in original).

Rather, whether disclosure 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

6 Plaintiff argues that the Supreme Court’s decision in Landano obligated the FBI to release Rongione’s records

once she testified at trial. On the contrary, Landano declined to reach this question. Landano, 508 U.S. at 173-74.

It held that, under Exemption (b)(7)(D), “[a] source should be deemed confidential if the source furnished

information with the understanding that the FBI would not divulge the communication except to the extent the

Bureau thought necessary for law enforcement purposes,” rejecting a “total secrecy” standard suggested by the

plaintiff. Id. at 174. Applying this reasoning to Exemptions (b)(6) and (b)(7)(C) would suggest, consistent with the

other precedents discussed above, that even if the secrecy of an individual’s involvement with the FBI has been

disclosed to the public to some extent, she would retain a privacy interest in government records pertaining to her.

to the light of public scrutiny.” Id. at 772 (internal quotation marks omitted) (citation omitted).

“Official information that sheds light on an agency’s performance of its statutory duties

falls squarely within that statutory purpose.” Id. at 773. On the other hand, the “disclosure of

information about private citizens that is accumulated in various governmental files but that

reveals little or nothing about an agency’s own conduct” does not serve FOIA’s purpose. Id.

“FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye

of public scrutiny, not that information about private citizens that happens to be in the warehouse

of the Government be so disclosed.” Id. at 774 (emphasis in original). The plaintiff bears the

burden of showing (1) that “the public interest sought to be advanced is a significant one, an

interest more specific than having the information for its own sake”; and, (2) that the information

sought “is likely to advance that interest.” Nat’l Archives & Recs. Admin. v. Favish, 541 U.S.

157, 172 (2004).

O’Brien argues an invasion of Rongione’s privacy is warranted because the public has a

cognizable interest in exposing alleged Brady violations that occurred in the course of his

criminal prosecution,7 and in proving his innocence.

a. Public Interest in Exposing Government Misconduct at Trial

The Third Circuit has held that uncovering Brady violations is a cognizable public

7 O’Brien also maintains that, at trial, the Government violated his rights under Giglio v. United States, 405 U.S. 150

(1972) and under “Jencks.” “Brady held that the government must turn over exculpatory evidence to defendants,

and Giglio held that impeachment evidence falls within the rule expressed in Brady.” United States v. Wecht, 484

F.3d 194, 207 n.15 (3d Cir. 2007) (citations omitted). Insofar as O’Brien’s claims relate to alleged violations of

Brady or Giglio, they will be analyzed together. The Jencks Act, 18 U.S.C. § 3500, “came into being to ‘qualify the

loose interpretations the lower federal courts’ had given” Jencks v. United States, 353 U.S. 657 (1957). United

States v. Murphy, 569 F.2d 771, 773 (3d Cir. 1978). O’Brien’s reference to “Jencks” will therefore be construed as

applying to the Act, not to the prior Supreme Court decision. The Act provides in relevant part: “After a witness

called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the

United States to produce any statement . . . of the witness in the possession of the United States which relates to the

subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b).

interest under FOIA. See Ferri v. Bell, 645 F.2d 1213, 1218 (3d Cir. 1981) (citing Brady v.

Maryland, 373 U.S. 83 (1963)), modified on other grounds by 671 F.2d 769 (3d Cir. 1982),

abrogated on other grounds by Reps. Comm., 489 U.S. at 780. But more is needed to show that

this interest warrants an invasion of demonstrated privacy interests.

In the context of FOIA, government records and official conduct enjoy a “presumption of

legitimacy.” Ray, 502 U.S. at 179. The Supreme Court held that, “where there is a privacy

interest protected by Exemption 7(C) and the public interest being asserted is to show that

responsible officials acted negligently or otherwise improperly in the performance of their duties,

the requester must establish more than a bare suspicion” to displace this presumption and obtain

disclosure of government records. Favish, 541 U.S. at 174. “Rather, the requester must produce

evidence that would warrant a belief by a reasonable person that the alleged Government

impropriety might have occurred.” Id. “Only when the FOIA requester has produced evidence

sufficient to satisfy this standard will there exist a counterweight on the FOIA scale for the court

to balance against the cognizable privacy interests in the requested records.” Id. at 174-75.

“Allegations of government misconduct are ‘easy to allege and hard to disprove,’ so courts must

insist on a meaningful evidentiary showing.” Id. at 175 (citation omitted).

The Brady rule holds that “a criminal defendant may seek a new trial if the prosecution

fails to inform him of information creating a reasonable doubt as to his guilt that might not

otherwise arise.” Ferri, 645 F.2d at 1218. To show that the Government committed a Brady

violation, a plaintiff must show: “(1) the prosecution must suppress or withhold evidence,

(2) which is favorable, and (3) material to the defense.” United States v. Claxton, 766 F.3d 280,

303 (3d Cir. 2014) (citation omitted). O’Brien has not “produce[d] evidence that would warrant

a belief by a reasonable person,” Favish, 541 U.S. at 174, that the prosecution committed a

violation under Brady because he has not made a showing of materiality.8

O’Brien alleges that “[t]here is no doubt [Rongione] lied at trial, and the information

requested here, proves those lies.” Specifically, he contends that Rongione lied by testifying that

she was not a confidential informant and had had no contact with Health Care Fraud Task Force

agents prior to O’Brien’s indictment. The only specific testimony cited by O’Brien is that, when

asked, “Are you the source that they are trying to protect?” Rongione replied, “I don’t know

what you mean.” This reply cannot reasonably be interpreted as an affirmation that she was not

a confidential informant. O’Brien also argues that “interviews of Rongione, prior to the

indictment” should have been disclosed, but he has not explained how those alleged interviews

would have been material to the outcome in his criminal case. His other arguments are similarly

conclusory.9

8 O’Brien does not develop these allegations fully, instead directing the Court to his habeas corpus petition under 28

U.S.C. § 2255, which was filed in his criminal case, “due to the number of pages involved, and the fact that the

[Bureau of Prisons] took all of O’Brien’s paperwork for his appeal.” Although pro se plaintiffs are given

considerable leeway, they still have to plead their case. O’Brien’s habeas corpus petition, filed in a completely

separate case, cannot be considered because it is not part of the summary judgment record here.

9 For example, O’Brien argues that “[t]he trial would have been different, and may never have happened, if the

government followed the rules of discovery and did not commit multiple Brady, Jencks, and Giglio violations;” that

“this information will exonerate him and show the prosecutor repeatedly lied at trial, suborned perjury, and

‘knowingly and purposefully’ withheld exculpatory discovery from O’Brien”; that “information known to the

prosecution, that should have been disclosed at trial, would have undercut or negated any of the facts upon which

Plaintiff was indicted by the Grand Jury, or convicted at trial”; and that “the information the government is now

withholding clearly is beneficial to O’Brien, proves Rongione was a ‘Confidential Source’, that Rongione perjured

herself repeatedly at trial, that the prosecutor suborned perjury, lied to achieve the indictment, and committed

several acts of Prosecutorial Misconduct.”

O’Brien has already attempted to prove these allegations in a collateral attack on his conviction, without success.

After sentencing, he filed a habeas motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence before

the district court, alleging, among other things, violations of Brady, Jencks, and Giglio. United States v. O’Brien,

No. 15-cr-21 (filed Jan. 20, 2015), ECF No. 866. The district court adopted the magistrate judge’s report and

recommendation denying the motion as “without merit,” id. ECF No. 882, and the Third Circuit affirmed on appeal.

Id. ECF No. 897. Although neither Party explicitly raised the doctrine of collateral estoppel, the Government argued

that “FOIA is not intended as a mechanism to challenge a criminal conviction” and that “O’Brien has fully

exhausted every challenge to his criminal conviction – both on direct and collateral appeal. At no time has he

prevailed on arguments that the government withheld evidence or violated his rights under Giglio, Brady, or

Jencks.” Whether collateral estoppel applies will not be decided here because it has not been fully briefed by the

Parties, but the courts’ rejection of O’Brien’s habeas corpus petition does not weigh in favor of a reasonable belief

Nor has O’Brien “produce[d] evidence that would warrant a belief by a reasonable

person” that the prosecution violated the Jencks Act. The Government’s disclosure obligations

under the Act accrue only upon motion of the defendant, 18 U.S.C. § 3500(b); United States v.

Heilman, 377 F. App’x 157, 195-96 (3d Cir. 2010), and the record does not reflect that O’Brien

brought such a motion.

b. Public Interest in Proving Innocence

Although the D.C. Circuit has recognized a public interest in proving a defendant’s

innocence (in the context of in an individual facing capital punishment), Roth, 642 F.3d at 1176-

77, several other Circuit Courts have declined to do so.10 As to the Third Circuit, when it held in

Ferri v. Bell that uncovering Brady violations constitutes a public interest under FOIA, it also

held that there is a cognizable public interest in overturning a federal conviction. 645 F.2d at

1218. Perceiving no sound basis on which to distinguish an interest in overturning a conviction

from an interest in proving an individual’s innocence, it will be assumed that the Third Circuit

would follow the D.C. Circuit and recognize innocence as a cognizable public interest under

FOIA.

But the Supreme Court’s instruction that the requester must “produce evidence that

would warrant a belief by a reasonable person that the alleged Government impropriety might

have occurred” continues to apply. Favish, 541 U.S. at 174. “Only when the FOIA requester

that government misconduct occurred.

10 See, e.g., Carpenter v. DOJ, 470 F.3d 434, 441 (1st Cir. 2006) (no public interest in establishing requester’s

innocence in prior criminal case or in supplementing discovery requests); Neely v. FBI, 208 F.3d 461, 464 (4th Cir.

2000) (requester’s purpose of establishing his innocence is not a “FOIA-cognizable public interest”); Burge v.

Eastburn, 934 F.2d 577, 580 (5th Cir. 1991) (public interest in fair trials is not cognizable under FOIA); Hawkins v.

DEA, 347 F. App’x 223, 225 (7th Cir. 2009) (holding that “a prisoner’s interest in attacking his own conviction is

not a public interest”); Peltier v. FBI, 563 F.3d 754, 764 (8th Cir. 2009) (general public interest in fair trials and

even-handed administration of justice not cognizable under FOIA).

has produced evidence sufficient to satisfy this standard will there exist a counterweight on the

FOIA scale for the court to balance against the cognizable privacy interests in the requested

records.” Id. at 174-75. O’Brien has not provided any evidence of his innocence. Therefore,

there is no “counterweight on the FOIA scale” and the privacy interests that the FBI seeks to

protect under Exemptions (b)(6) and (b)(7)(C) win out.

D. Exemption (b)(7)(A): Law Enforcement Proceedings

To apply Exemption (b)(7)(A), the Government must show that “(1) a law enforcement

proceeding is pending or prospective and (2) release of the information could reasonably be

expected to cause some articulable harm.” Manna v. DOJ, 51 F.3d 1158, 1164 (3d Cir. 1995).

Seidel explained in his First Declaration that the FBI invoked Exemption (b)(7)(A) “in a limited

fashion to protect a single pending case file number,” because “[t]he FBI determined release of

any of this material would provide criminals with information about the government’s

investigation in ongoing matters and allow them to discover or tamper with witnesses and/or

destroy evidence.” The Government’s First Vaughn Index shows that the FBI invoked this

exemption to redact one document and withhold four documents (entries 9, 327, 330, 332, and

334). O’Brien speculated that the case file number at issue is his own criminal case, but the

Government responded that this assertion “does not reflect the nature of the information actually

withheld by the FBI.” As O’Brien has neither challenged the Government’s invocation of this

exemption on other grounds, nor advanced evidence of bad faith, the Government has made a

sufficient showing as to this exemption.

E. Exemption (b)(7)(E): Law Enforcement Techniques and Procedures

Exemption (b)(7)(E) allows a federal agency to withhold or redact “records or

information compiled for law enforcement purposes” to the extent that their release “would

disclose techniques and procedures for law enforcement investigations or prosecutions.”

5 U.S.C. § 552(b)(7)(E). Seidel explained that the FBI invoked this exemption to protect (1) FBI

internal phone numbers and email addresses; (2) investigative techniques and procedures of its

informant program; (3) surveillance techniques and information on surveillance targets and

locations; and, (4) undercover operations techniques.

Seidel explained the FBI’s use of Exemption (b)(7)(E) in further detail in his Third

Declaration. For example, he stated that “it is the FBI’s policy to withhold CHS reporting forms

in full because of the harm it would do to the FBI’s CHS Program.” Thus, the FBI withheld in

full page 180, because it was a standard FD-1023 CHS reporting form. The FBI also invoked

this exemption to withhold “specific details related to the use of physical surveillance if the

disclosure of those details could reasonably be expected to risk circumvention of the law.” Thus,

the FBI withheld in full pages 183, 198, and 324 because they revealed the “who, what, when,

where, and how of the surveillance” and the rest of the information contained on those pages was

deemed non-segregable.11 Seidel further reasoned that although the public knows that the FBI

conducts surveillance, it does not know “the specific details or targeted information gathered.”

And while the public knows that the FBI uses undercover employees, the agency wielded

Exemption (b)(7)(E) to shield from public view “the specific details of when they are used or the

manner they are used, the information gathered as a result of this technique, and the relative

utility of the type of information gathered,” because of the “reasonably foreseeable harm to

undercover employees and the risk of providing information that would expose and disrupt

11 Seidel’s First Declaration also addressed the issue of segregability, explaining that, for those documents withheld

in full, the FBI had determined that “any non-exempt information on these pages was so intertwined with exempt

material, no information could be reasonably segregated for release. Any further segregation of this 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.”

undercover operations.”

O’Brien contends that the Government cannot invoke Exemption (b)(7)(E) to shield

information that should have been produced to him in discovery in his criminal case. As

explained above, there is no public interest in re-enacting O’Brien’s discovery battles. See Roth,

642 F.3d at 1177 (citation omitted). He also argues, without citation to any legal authorities, that

“[t]he Federal statutes have a ‘six year statute of limitations.’” It is not clear what O’Brien

means by this, but when an argument is “raised in passing . . . but not squarely argued,” it is

considered waived. John Wyeth & Brother Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 n.6

(3d Cir. 1997)); see also Eastern District of Pennsylvania Local Rule 7.1(c) (requiring that briefs

contain a concise statement of the authorities relied on).

As O’Brien raises no other argument to challenge the Government’s use of Exemption

(b)(7)(E), he has not overcome the Government’s well-reasoned explanations.

CONCLUSION

The Government has carried its burden in this FOIA case. In three declarations and

seventy-eight pages of detail, its witness described the FBI’s information indexing systems, its

records maintenance practices, and its search procedures. Seidel explained the specific searches

conducted in response to O’Brien’s request, identified each of the five exemptions applied to the

records sought by O’Brien, and broke each exemption down into more specific subcategories of

information. He explained what types of documents and information fell under each category

and subcategory, why the agency considered those exemptions applicable, and the potential

ramifications of disclosing the withheld information. Because O’Brien has not introduced any

record evidence that contradicts Seidel’s declarations or that suggests bad faith, summary

judgment is warranted. ACLU, 628 F.3d at 619. The Government’s Motion for Summary

Judgment will be granted and O’Brien’s Motion for Summary Judgment will be denied.

An appropriate order follows.

BY THE COURT:

/s/Wendy Beetlestone, J.

___________________________

WENDY BEETLESTONE, J.