observing an unauthorized disclosure does not waive a FOIA exemption
How later courts described this case
- observing an unauthorized disclosure does not waive a FOIA exemption
- informants in a triple murder investigation
- “[T]here is no requirement that an agency produce all responsive documents.”
- informants to a conspiracy to distribute crack cocaine
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 23, 2024 Decided July 16, 2024
No. 22-5231
BARBARA KOWAL,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-02798)
Matthew E. Kelley argued the cause for appellant. On the
briefs was D. Todd Doss, Assistant Federal Defender.
Jeremy S. Simon, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Brian P. Hudak
and Jane M. Lyons, Assistant U.S. Attorneys.
2
No. 22-5287
BARBARA KOWAL,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE AND DRUG
ENFORCEMENT ADMINISTRATION, FREEDOM OF INFORMATION
REQUEST/PA UNIT,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-00938)
Matthew E. Kelley argued the cause for appellant. On the
briefs was D. Todd Doss, Assistant Federal Defender.
Jeremy S. Simon, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Brian P. Hudak
and Jane M. Lyons, Assistant U.S. Attorneys. Douglas C.
Dreier, Assistant U.S. Attorney, entered an appearance.
Before: HENDERSON, PILLARD, and RAO, Circuit Judges.
Opinion for the Court filed by Circuit Judge RAO.
RAO, Circuit Judge: Barbara Kowal filed Freedom of
Information Act (“FOIA”) requests with several law
enforcement agencies. Unsatisfied by the agencies’
disclosures, Kowal brought two suits claiming that the
3
agencies failed to make adequate searches and that they
wrongfully withheld records. The district court granted
summary judgment for the agencies in both cases. We affirm
because the searches were adequate and the records were
exempted from disclosure under FOIA.
I.
Kowal is a paralegal for a federal public defender
representing Daniel Troya. Troya was sentenced to death for
the “gangland-style” murder of a family of four on a highway
roadside. See United States v. Troya, 733 F.3d 1125, 1136–37
(11th Cir. 2013). The murder was committed “to protect a
large-scale drug trafficking ring involving drugs, guns and
extensive violence.” Id. at 1129. In his habeas proceedings,
Troya asserted the government failed to disclose exculpatory
material at his trial.
Seeking evidence to support Troya’s claim, Kowal
submitted identical FOIA requests to the Bureau of Alcohol,
Tobacco, Firearms and Explosives (“ATF”), the Federal
Bureau of Investigation (“FBI”), and the Drug Enforcement
Administration (“DEA”), asking for “all documents, files,
records, etc. pertaining to any investigation, arrest, indictment,
conviction, sentencing, incarceration, and/or parole
of … Daniel Troya (a/k/a ‘Homer’).” Kowal’s requests
included Troya’s date of birth and information identifying his
federal charges and criminal proceedings.
In response to Kowal’s request, the agencies searched for
responsive records. The DEA searched its centralized records
system using Troya’s name and date of birth and identified 418
responsive pages. The DEA produced 14 pages in full, 133 in
part, and withheld 271. The ATF searched two of its internal
records systems, using the keyword “Daniel Troya,” and
identified 480 responsive pages. The ATF produced 63 pages
4
in full, 223 in part, and withheld 194. The FBI searched its
Central Records System using the terms “Daniel Anthony
Troya” and “Homer Troya.” The FBI identified 275 responsive
pages, produced 134 pages (with some redactions), and
withheld 141. In their Vaughn indices,1 the agencies explained
that they withheld information pursuant to FOIA Exemptions
3, 6, 7(C), 7(D), 7(E), and 7(F). See 5 U.S.C. § 552(b)(3), (6),
(7)(C)–(F).
Dissatisfied with the responses, Kowal challenged the
adequacy of the agencies’ searches and alleged the agencies
impermissibly withheld documents. After she exhausted her
administrative remedies, Kowal filed two suits in federal court
against components of the Department of Justice: one primarily
against the FBI and the ATF, and another against the DEA. The
district court granted summary judgment to the agencies. See
Kowal v. Dep’t of Justice, 2022 WL 2315535 (D.D.C. June 27,
2022); Kowal v. Dep’t of Justice, 2022 WL 4016582 (D.D.C.
Sept. 2, 2022). Kowal timely appealed. Because the legal and
factual issues substantially overlap, we decide both appeals in
a single opinion.
II.
FOIA requires federal agencies, when requested, to
disclose certain agency records unless an exemption applies.
Pub. L. No. 89-487, 80 Stat. 250 (1966) (codified as amended
at 5 U.S.C. §§ 552–59). Kowal challenges both the adequacy
1
When relying on a FOIA exemption to withhold records, an agency
must “provide a relatively detailed justification, specifically
identifying the reasons why a particular exemption is relevant and
correlating those claims with the particular part of a withheld
document to which they apply.” Mead Data Cent., Inc. v. Dep’t of
Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977); see also Vaughn v.
Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973).
5
of the agencies’ searches and their withholding of some
records. We review the district court’s grants of summary
judgment de novo.
A.
Kowal first challenges the adequacy of the searches made
by the FBI, ATF, and DEA. An agency must demonstrate it
“made a good faith effort to conduct a search for the requested
records, using methods which can be reasonably expected to
produce the information requested.” Watkins Law & Advoc.,
PLLC v. Dep’t of Justice, 78 F.4th 436, 442 (D.C. Cir. 2023)
(cleaned up). The adequacy of a search is “determined not by
the fruits of the search, but by the appropriateness of the
methods used to carry out the search.” Ancient Coin Collectors
Guild v. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011)
(cleaned up). We consider whether the agency’s search was
reasonable based on the specific information requested and the
agency’s efforts to produce that information.
To facilitate judicial review, an agency usually provides
an “affidavit, setting forth the search terms and the type of
search performed, and averring that all files likely to contain
responsive materials … were searched.” Oglesby v. Dep’t of
Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “Agency affidavits are
accorded a presumption of good faith,” and we will not credit
“[m]ere speculation that … uncovered documents may exist”
as a basis for finding an agency’s search inadequate. SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1200–01 (D.C. Cir. 1991).
1.
Kowal first argues she presented evidence the FBI, ATF,
and DEA overlooked responsive records. Kowal possesses
over 200 multimedia items from Troya’s trial, some of which,
for instance, explicitly mention the DEA in the file name. The
6
agencies did not disclose these records in response to her FOIA
request. Kowal maintains these omissions are sufficient
evidence to preclude summary judgment because she has
raised a factual dispute about the adequacy of the agencies’
searches.
We disagree. At best, Kowal has established the agencies
may have missed some records in their searches. But a
“reasonable and thorough search” may still miss records.
Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C.
Cir. 2003); see also Nation Magazine v. U.S. Customs Serv., 71
F.3d 885, 892 n.7 (D.C. Cir. 1995) (“[T]here is no requirement
that an agency produce all responsive documents.”). Agencies
are not required “to examine virtually every document in [their]
files” or “follow[] an interminable trail of cross-referenced
documents.” Steinberg v. Dep’t of Justice, 23 F.3d 548, 552
(D.C. Cir. 1994). We focus on the process, not the results, when
determining the adequacy of a FOIA search. See, e.g.,
Safecard, 926 F.2d at 1201.
We hold the agencies’ searches were reasonable in light of
Kowal’s particular requests. In identical requests to the FBI,
ATF, and DEA, Kowal asked for “all … records … pertaining
to any investigation, arrest, indictment, conviction, sentencing,
incarceration, and/or parole” of Troya. Kowal specified
Troya’s criminal proceeding and federal charges and
represented that she was requesting the information for Troya’s
habeas proceedings. The framing of Kowal’s requests directed
the agencies toward their criminal investigation databases. The
FBI searched its Central Records System, which “spans the
entire FBI organization and encompasses the records of FBI
Headquarters … , FBI Field Offices, and FBI Legal Attaché
Offices … worldwide.” The ATF similarly searched its N-
Force database and Treasury Enforcement Communications
System, which are “the two systems of records where ATF
7
records of criminal investigations are housed.” The DEA
searched its Investigative Reporting and Filing System, which
included a “worldwide search for DEA records, including
records maintained at field offices.”
Troya was a criminal defendant, and Kowal sought
materials about his criminal investigation. The FBI, ATF, and
DEA each searched their criminal investigation databases
based on Kowal’s specific records request. They were not
required to do more. “The agency is not required to speculate
about potential leads.” Kowalczyk v. Dep’t of Justice, 73 F.3d
386, 389 (D.C. Cir. 1996) (cleaned up).
Moreover, Kowal contends the agencies’ searches were
inadequate because they failed to uncover additional trial
records in her possession that she surmises the agencies should
have produced. But given that entities not subject to these
FOIA requests—including local law enforcement and the U.S.
Attorney’s office in Florida—were involved in investigating
and trying Troya, Kowal has not supported her inference. Our
review of the record and the omitted materials does not “raise[]
substantial doubt” about the reasonableness of the searches.
Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 326
(D.C. Cir. 1999) (cleaned up). If Kowal believes the agencies
failed to turn over specific records from Troya’s trial and wants
the agencies to pursue records related to her trial exhibits, she
can submit a second, more specific FOIA request. See
Kowalczyk, 73 F.3d at 389. But she fails to demonstrate the
agencies’ searches were inadequate.
2.
Second, Kowal challenges the scope of the agencies’
searches, asserting that the agencies narrowly construed her
requests, failed to use all relevant keywords, and failed to
search all appropriate databases.
8
Kowal first contends the FBI and ATF failed to construe
her search requests accurately, both by not searching for all
records mentioning Troya and by improperly limiting searches
to only certain records systems.2 Yet Kowal specifically
requested records pertaining to the federal criminal
investigation and prosecution of Troya and detailed his federal
charges and criminal proceedings in the subject line of her
request.
As explained in the previous section, the FBI and ATF
properly explained that they searched all relevant databases for
investigation files related to the criminal matter Kowal
referenced in her FOIA request. The ATF explained it
construed Kowal’s request as one for “records of ATF’s role in
the federal criminal investigation of Daniel Troya” and
accordingly searched its only two databases with records on
criminal investigations. For similar reasons, the FBI clarified it
did not need to search beyond its Central Records System
because any information related to Troya’s criminal
prosecution would be indexed there.
Agencies have the discretion to construe requests
reasonably and conduct flexible and targeted searches within
their internal records systems. Agencies do not need to honor
unreasonably burdensome requests, boiling the ocean in search
of responsive records. See, e.g., Nation Magazine, 71 F.3d at
891–92.
Kowal does not rebut the agency affidavits or provide any
“evidence of agency bad faith.” See Halperin v. CIA, 629 F.2d
144, 148 (D.C. Cir. 1980). Rather, she only speculates that the
FBI and ATF possess other records about Troya. But “[m]ere
2
Kowal does not appeal the district court’s conclusion that the DEA
properly searched its databases.
9
speculation” is insufficient to demonstrate the agencies’
searches were inadequate. See Safecard, 926 F.2d at 1201.
Second, Kowal maintains the FBI, ATF, and DEA did not
conduct adequate searches because they failed to search for
records mentioning Troya’s alias or to search using phonetic
variations of Troya’s name. Agencies have flexibility when
searching for responsive records and so may conduct phonetic
or alias searches when these searches are likely to produce
additional, responsive records. Such variant searches, however,
are not always required. Maynard v. CIA, 986 F.2d 547, 560
(1st Cir. 1993). We review only whether the methods used “can
be reasonably expected to produce the information requested,”
Oglesby, 920 F.2d at 68, and whether the agency’s search was
“tailored to the nature” of the FOIA request, Campbell v. Dep’t
of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998).
Given the parameters of Kowal’s request and because the
agencies located Troya’s criminal investigation files, it was
reasonable for them not to search using Troya’s alias. Kowal
only requested records “pertaining to any investigation, arrest,
indictment, conviction, sentencing, incarceration, and/or
parole of Daniel Troya.” The DEA explained that it maintains
records related to criminal investigations in its Investigative
Reporting and Filing System, which is indexed by name and
date of birth. The DEA searched the system and found five
criminal investigative files for Troya. Because the DEA
located the files mentioned in Kowal’s request, there was no
need to separately search for additional records indexed under
Troya’s alias. Similarly, the ATF and FBI also detailed how
they maintain criminal and investigatory files indexed by
name, social security number, or date of birth, and found
responsive investigative files concerning Troya’s prosecution
with searches tailored for their databases. Any mention of the
alias “Homer” that Kowal believes could be found through an
10
alternative search is not responsive to her request for records
related to the investigation and trial “of Daniel Troya.” Nor is
it “obvious” that Troya would be referenced only by his alias
in any agency database. See Am. Oversight v. Dep’t of Health
& Hum. Servs., 101 F.4th 909, 923–24 (D.C. Cir. 2024). Once
the agencies found their criminal investigative files pertaining
to Troya’s capital case, it was reasonable not to search further.
Kowal merely speculates the agencies possess additional
records in which Troya was identified only by his street name.
But that is insufficient to demonstrate the agencies’ searches
were unreasonable or performed in bad faith.
***
In sum, the FBI, ATF, and DEA followed Kowal’s specific
requests to locate records relevant to Troya’s criminal case and
demonstrated that their search methods were reasonable.
B.
Kowal also challenges the agencies’ reliance on FOIA
Exemptions 3, 6, 7(C), 7(D), and 7(E) to withhold records.3
Agencies may demonstrate the applicability of an exemption
by affidavit. And “an agency’s justification for invoking a
FOIA exemption is sufficient if it appears ‘logical’ or
‘plausible.’” Judicial Watch, Inc. v. Dep’t of Defense, 715 F.3d
937, 941 (D.C. Cir. 2013) (per curiam) (cleaned up). We hold
3
The FBI and DEA also withheld records pursuant to FOIA
Exemption 7(F), 5 U.S.C. § 552(b)(7)(F). The district court did not
rule on the applicability of this exemption because all records
withheld under 7(F) were also withheld under 7(C). We agree the
records are exempt under Exemption 7(C), so it is unnecessary to
determine whether Exemption 7(F) also justifies withholding these
records.
11
the agencies were justified in withholding certain records under
these exemptions.
1.
Exemption 3 protects records “specifically exempted from
disclosure by statute.” 5 U.S.C. § 552(b)(3). The FBI invoked
this exemption to withhold a narrative summary of a wiretap
conversation, as required by the Wiretap Act, 18 U.S.C.
§§ 2510–12. Kowal does not dispute the record is subject to
Exemption 3’s protections. She claims instead that the record
should be released under the public domain doctrine because it
summarizes wiretaps introduced at Troya’s trial.
The public domain doctrine provides that “materials
normally immunized from disclosure under FOIA lose their
protective cloak once disclosed and preserved in a permanent
public record.” Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir.
1999). But this exception is “narrow” and entitles “the
requester [to] receive no more than what is publicly available.”
See id. at 553–55. Courts are forbidden “from prying loose
from the government even the smallest bit of information that
is properly” withheld. Afshar v. Dep’t of State, 702 F.2d 1125,
1130 (D.C. Cir. 1983).
Kowal alleges only that the wiretapped conversations were
made public at Troya’s trial, not that the FBI’s narrative
summary of those conversations was made public. An agency’s
summary is not the same as the conversation itself. Kowal has
not shown “there is a permanent public record of the exact”
record she seeks. Davis v. Dep’t of Justice, 968 F.2d 1276,
1280 (D.C. Cir. 1992). The public domain doctrine does not
defeat the FBI’s withholding under Exemption 3.
12
2.
The FBI, ATF, and DEA invoked FOIA Exemptions 6 and
7(C) to withhold the names and other identifying information,
including addresses and phone numbers, of witnesses and law
enforcement personnel involved in Troya’s investigation.
FOIA Exemption 6 protects “personnel … and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(6). FOIA
Exemption 7(C) protects “records or information compiled for
law enforcement purposes … [that] could reasonably be
expected to constitute an unwarranted invasion of personal
privacy.” Id. § 552(b)(7)(C). When, as here, the request is for
records compiled for law enforcement purposes, the
information protected by Exemption 6 is a subset of that
protected by Exemption 7(C), so we need only analyze the
latter. Roth v. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir.
2011).
When reviewing an agency’s reliance on Exemption 7(C),
we “must balance the privacy interests involved against the
public interest in disclosure.” SafeCard, 926 F.2d at 1205.
There must be “substantial probability that the disclosure [of
information] will lead to the threatened invasion [of privacy].”
Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 878
(D.C. Cir. 1989). We “apply a more deferential attitude toward
the claims of ‘law enforcement purpose’ made by a criminal
law enforcement agency” because “inadvertent disclosure of
criminal investigations, information sources, or enforcement
techniques might cause serious harm to the legitimate interests
of law enforcement agencies.” Pratt v. Webster, 673 F.2d 408,
418 (D.C. Cir. 1982).
Kowal argues that the agencies failed to justify their
withholdings. We disagree. The FBI, ATF, and DEA explained
13
that they redacted names and other personal information, such
as telephone numbers, addresses, and confidential source
numbers, to prevent “possible harassment” or “derogatory
inferences and suspicion” against the personnel and witnesses
for their involvement in a gang murder investigation. These
explanations are sufficient to demonstrate that the disclosure of
the withheld information would threaten privacy interests.
Schrecker v. Dep’t of Justice, 349 F.3d 657, 666 (D.C. Cir.
2003).
Moreover, Kowal fails to establish any cognizable public
interest in disclosure. There is no public interest in disclosure
“unless there is compelling evidence that the agency denying
the FOIA request is engaged in illegal activity, and access to
the [requested information] … is necessary in order to confirm
or refute that evidence.” Safecard, 926 F.2d at 1205–06. Kowal
provides no evidence of agency misconduct. Instead, she
merely speculates that the government may have exculpatory
evidence in Troya’s capital case and that this implicates the
public interest. Our caselaw is clear that “the requester must
establish more than a bare suspicion in order to obtain
disclosure.” CREW v. Dep’t of Justice, 746 F.3d 1082, 1094
(D.C. Cir. 2014) (cleaned up); see also Roth, 642 F.3d at 1178
(same). Where there is no identifiable public interest, the
privacy interest protected by Exemption 7(C) prevails because
“something, even a modest privacy interest, outweighs nothing
every time.” Horner, 879 F.2d at 879.
Kowal also argues the public domain doctrine should
overcome the agencies’ reliance on Exemption 7(C) for some
withheld trial records and witness names. Although she
provided the district court with a list of testifying witnesses and
transcripts of their testimony, these trial records demonstrate
only that those specific witnesses testified at trial. The records
do not link witnesses to particular documents or to the
14
information provided by that source. Because the specific
information Kowal seeks has not been publicly disclosed, she
cannot benefit from the public domain doctrine. See Afshar,
702 F.2d at 1130.
Kowal also specifically challenges the FBI’s withholding
of a testifying witness’s plea agreement because the agreement
was admitted into evidence at trial and discussed in open court.
Trial records are generally considered public; however, to
satisfy the public domain doctrine, they must be “preserved in
a permanent public record.” Cottone, 193 F.3d at 554. Records
are no longer public when “destroyed, placed under seal, or
otherwise removed from the public domain.” Id. at 556. And
our circuit has cast doubt on the proposition that “practically
obscure” material remains public. Davis, 968 F.2d at 1279
(cleaned up). Here, the FBI has provided evidence that Troya’s
trial records, including the specified plea agreement, were not
filed with the court and preserved. Because these records are
not accessible on the public or electronic docket, the plea
agreement does not fit within the public domain doctrine.
We hold that the FBI, ATF, and DEA properly justified
their withholding of records under Exemption 7(C).
3.
The FBI and DEA also relied on Exemption 7(D) to
withhold information that “could reasonably be expected to
disclose the identity of a confidential source … [or]
information furnished by a confidential source.” 5 U.S.C.
§ 552(b)(7)(D). Kowal argues this exemption is inapplicable
because the agencies failed to demonstrate that each source
testified with an assurance of confidentiality and provided no
“particularized findings for each source.”
15
A source is “confidential” if he “provided information
under an express assurance of confidentiality or in
circumstances from which such an assurance could be
reasonably inferred.” Dep’t of Justice v. Landano, 508 U.S.
165, 172 (1993). For example, in the context of a serious or
violent crime we may infer an assurance of confidentiality
because of the risks of exposing a “criminal
enterprise … inclined toward violent retaliation.” Mays v.
DEA, 234 F.3d 1324, 1330 (D.C. Cir. 2000). Of course, we
cannot “cloak in confidentiality anything anyone ever tells a
law enforcement officer about any … crime.” Id. Nonetheless,
the government may invoke Exemption 7(D) if the
circumstances, such as the nature of the crime investigated and
the informant’s relation to it, support an inference of
confidentiality. Id. at 1329.
The circumstances here easily support an inference of
confidentiality for each source in Troya’s murder
investigation.4 The FBI plausibly asserted it was “especially
important” to withhold information about sources in this
context “given the subject matter … involves [the] murder of a
family on a roadside, [and Troya] was convicted for such
murder.” Similarly, the DEA explained the sources provided
information about an extensive drug trafficking operation and
therefore faced a threat of violent reprisal. We have recognized
implied assurances of confidentiality in similar circumstances.
See id. (informants to a conspiracy to distribute crack cocaine);
Hodge v. FBI, 703 F.3d 575, 578, 581–82 (D.C. Cir. 2013)
(informants in a triple murder investigation). The grisly nature
of Troya’s crime, committed to further a drug trafficking
4
Because the information was provided by sources with an implied
assurance of confidentiality, we need not address whether some
information was also provided pursuant to an express assurance of
confidentiality.
16
operation, permits a fair inference of confidentiality for the
sources in Troya’s investigation.
Kowal also maintains that any source who expected to
testify at trial cannot be considered confidential and is not
protected by Exemption 7(D). But our circuit has long rejected
this argument. “It would defeat the purpose of FOIA
[E]xemption 7(D) to hold that the possibility of trial testimony
to some or all of the substance of an FBI interview establishes
that the source had no expectation that his identity would
remain undisclosed.” Schmerler v. FBI, 900 F.2d 333, 339
(D.C. Cir. 1990).
We note that Exemption 7(D) has no balancing test. If
“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.”
Roth, 642 F.3d at 1184–85 (cleaned up). The FBI and DEA
demonstrated the sources here were confidential and
reasonably justified withholding the information they provided
in Troya’s investigation.
4.
Kowal also challenges the FBI’s and DEA’s Exemption
7(E) withholdings. Exemption 7(E) allows agencies to
withhold records when release would “disclose techniques and
procedures for law enforcement investigations or prosecutions,
or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law.” 5
U.S.C. § 552(b)(7)(E). The FBI and DEA invoked Exemption
7(E) to withhold records detailing investigative techniques,
including technical information about computer databases and
internal systems.
17
To justify withholding under Exemption 7(E), an agency
must clear only a “low bar” by “demonstrat[ing] logically how
the release of the requested information might create a risk of
circumvention of the law.” Blackwell v. FBI, 646 F.3d 37, 42
(D.C. Cir. 2011) (cleaned up).
This low bar is easily cleared here. The agencies provided
well-supported affidavits explaining how the information
withheld could aid criminal elements. For example, the DEA’s
declarant explained the withheld information could provide
drug traffickers information on how the agency prioritized its
investigations, permitting would-be criminals to change their
behaviors to avoid detection. Similarly, the FBI’s affidavit
explained that providing information on internal databases and
file paths could aid in the commission of cyberattacks against
the agency. The agencies logically connected withholding with
preventing circumvention of the law.
Kowal also claims this withheld information is publicly
available, but her evidence fails to support this contention. For
example, she asserts that a requested DEA manual is public,
providing an Amazon.com link. But this link is for an outdated
manual, and Kowal does not allege the DEA officially released
this manual. See, e.g., Medina-Hincapie v. Dep’t of State, 700
F.2d 737, 742 n.20 (D.C. Cir. 1983) (observing an
unauthorized disclosure does not waive a FOIA exemption).
Nor does Kowal demonstrate the agencies merely withheld
information on ordinary law enforcement tactics already
known to the public. Instead, the agencies’ affidavits detail
how the agencies were protecting “methods … [the agency]
considers meaningful … [which] can reveal law enforcement
techniques and procedures.” Shapiro v. Dep’t of Justice, 893
F.3d 796, 800 (D.C. Cir. 2018).
18
The FBI and DEA met their burden to explain how
disclosure of the information could reasonably be expected to
risk circumvention of the law under Exemption 7(E).5
***
For the foregoing reasons, the agencies properly
responded to Kowal’s FOIA requests. We therefore affirm the
grants of summary judgment to the FBI, ATF, and DEA.
So ordered.
5
Kowal also challenges the adequacy of the agencies’ Vaughn
indices and the appropriateness of redactions. Her arguments largely
mirror those made against the FOIA exemptions, and they similarly
fail.