Anthony Viola v. US Department of Justice

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

Nos. 18-2573 & 22-2186

____________

ANTHONY L. VIOLA,

Appellant

v.

UNITED STATES DEPARTMENT OF JUSTICE,

FEDERAL BUREAU OF INVESTIGATION,

Records/Information Dissemination Section; UNITED

STATES DEPARTMENT OF JUSTICE, Executive Offices

for the United States Attorneys-Freedom of Information &

Privacy Staff; CUYAHOGA COUNTY MORTGAGE

FRAUD TASK FORCE; KATHRYN CLOVER

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 1:15-cv-00242)

District Judge: Honorable Susan Paradise Baxter

____________

Argued: July 13, 2023

Before: PHIPPS, McKEE, and RENDELL, Circuit Judges

(Filed: November 3, 2025)

____________

Alan Chen [ARGUED]

Daniel Mejia-Cruz

YALE LAW SCHOOL

127 Wall Street

New Haven, CT 06511

Tadhg Dooley

David R. Roth

WIGGIN & DANA

One Century Tower

265 Church Street

New Haven, CT 06510

Counsel for Appellant

Laura S. Irwin

OFFICE OF UNITED STATES ATTORNEY

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Sharon Swingle

Daniel Winik [ARGUED]

UNITED STATES DEPARTMENT OF JUSTICE

CIVIL DIVISION APPELLATE

950 Pennsylvania Avenue NW

Washington, DC 20530

Counsel for Appellees United States

Department of Justice, Federal Bureau of

Investigation, Records/Information

Dissemination Section and United States

Department of Justice, Executive Offices for the

United States Attorneys-Freedom of

Information & Privacy Staff

2

Jake A. Elliott [ARGUED]

CUYAHOGA COUNTY PROSECUTOR’S OFFICE

1200 Ontario Street

8th Floor

Cleveland, OH 44113

Counsel for Appellee Cuyahoga County

Mortgage Fraud Task Force

____________

OPINION OF THE COURT

____________

PHIPPS, Circuit Judge.

After an Ohio man was investigated by a county-specific

mortgage fraud task force, he was charged in federal court with

three dozen counts related to mortgage fraud. Following a trial,

the jury found him guilty of all but one of those counts. The

man was also charged in Ohio state court with fifty-two counts

related to the same underlying conduct. The state-court jury,

however, acquitted the man of all counts.

The disparity in those outcomes prompted the man, while

incarcerated, to look for evidence of governmental misconduct

associated with his federal convictions. As part of his efforts,

he submitted requests under the Freedom of Information Act

to two federal agencies. See 5 U.S.C. § 552. Neither agency

produced any records within the statutory response time, and

the man, then imprisoned in Pennsylvania, filed a civil

enforcement action against those agencies in the District Court.

After the litigation commenced, both agencies began

producing responsive records, and the man then moved to

amend his complaint to add as a defendant the county-specific

task force that had originally investigated him for mortgage

fraud. The District Court permitted that amendment, but it

3

later granted the task force’s motion to dismiss for a lack of

personal jurisdiction. The two federal agencies filed a joint

dispositive motion, and the District Court entered summary

judgment in their favor. In this appeal, the man challenges the

District Court’s rulings with respect to the task force and the

two federal agencies.

For the reasons below, we will affirm the dismissal of the

county-specific task force for a lack of personal jurisdiction,

and we will affirm in part and vacate in part the entry of

summary judgment in favor of the federal agencies. The

vacated matter will be remanded to the District Court for

proceedings consistent with this opinion, and we will not retain

jurisdiction over the case while on remand.

I. FACTUAL BACKGROUND

In September 2007, the Ohio Organized Crime

Investigations Commission, a division of the Ohio Attorney

General’s Office, established the Cuyahoga County Mortgage

Fraud Task Force pursuant to Ohio law. See Ohio Rev. Code

Ann. § 177.02(B) (West 1999). The Task Force consisted of

six state and local law enforcement organizations that agreed

in 2008 to combat organized mortgage fraud in Cuyahoga

County by assigning their personnel to the Task Force.1 In

addition to its participating agencies, the Task Force

recognized the cooperation of additional federal, state, and

local agencies, including the Federal Bureau of Investigation

and the United States Attorney’s Office for the Northern

1

Those organizations were the Cleveland Heights Police

Department; the Office of the Prosecuting Attorney for

Cuyahoga County; the Cuyahoga County Sheriff’s Office; the

Pepper Pike Police Department; the Cleveland Police

Department; and the Bureau of Criminal Identification and

Investigation within the Ohio Attorney General’s Office.

4

District of Ohio, both of which are agencies within the United

States Department of Justice.2

The Task Force’s investigative jurisdiction was limited to

Cuyahoga County, and as part of its mission, the Task Force

cooperated with the FBI to investigate Anthony Viola for

mortgage fraud in connection with nineteen properties there.

Viola, who lived in Cleveland Heights, Ohio, at the time, held

ownership interests in four businesses – Realty Corporation of

America, Central National Mortgage, Title Network of

America, and American Title Network. He was also the

president of Realty Corporation of America and a manager of

Transcontinental Lending Group.

The investigation into Viola led to his prosecutions in

federal court and state court. At the federal level, a grand jury

in the Northern District of Ohio indicted him in May 2009 on

thirty-four counts of wire fraud in violation of 18 U.S.C.

§ 1343 and two counts of conspiracy to commit wire fraud in

violation of 18 U.S.C. § 371. At the state level, Viola was

charged in the Cuyahoga County Common Pleas Court in

May 2010 with fifty-two counts of violating several provisions

of Ohio law related to mortgage fraud, including records

tampering, receipt of stolen property, and money laundering.

See Ohio Rev. Code Ann. §§ 1315.55, 2913.02(A), 2913.05,

2913.42, 2913.51, 2923.32. Viola maintained his innocence

and pleaded not guilty to all of the charges against him in both

cases.

In February 2011, the federal case went to trial. The jury

returned a verdict of guilty on thirty-five of the counts and not

2

The other cooperating agencies were the Office of the

Recorder for Cuyahoga County; the Office of the Auditor for

Cuyahoga County; the Office of the Treasurer for Cuyahoga

County; the Ohio Department of Commerce; the United States

Department of Housing and Urban Development; and the

United States Postal Inspection Service.

5

guilty on one count of wire fraud. Viola later received a 150-

month prison sentence for those crimes consisting of 60-month

terms for the conspiracy charges and 150-month terms for the

wire-fraud charges – all to run concurrently.

In the time between the guilty verdict and Viola’s federal

sentencing hearing, yet still before the trial in state court, the

former Office Manager for the Task Force, Dawn Pasela,

contacted Viola. Pasela, who was in her mid-twenties and who

had been released from her position with the Task Force for

absenteeism, told Viola that the prosecutors had engaged in

misconduct by impermissibly destroying evidence and by

directing her to surreptitiously record their post-indictment

conversations with Viola to gain insight into his defense

strategy.

In 2012, before his trial on the state charges began, Viola

identified Pasela on his witness list and subpoenaed her to

testify. According to her father, two Task Force agents then

visited Pasela at her apartment, told her to leave Ohio for a

while, and indicated that if she testified for Viola, she could be

charged with federal crimes. Pasela then temporarily moved

in with her parents but later returned to her apartment. She did

not, however, appear to testify at trial at the designated time,

and the state court issued a bench warrant to compel her

appearance. After Pasela contacted the state court to explain

her concerns about testifying, it recalled the bench warrant, and

the trial proceeded without her testimony. Within a week, and

while the jury was deliberating, Pasela’s father found her dead

in her apartment, and the cause of death was later listed as acute

alcohol intoxication. Even without Pasela’s testimony, Viola

was acquitted on all counts.

In April 2013, while serving his federal sentence in prison

in Ashland, Kentucky, Viola made a request for records to the

FBI under the Freedom of Information Act, as amended,

commonly abbreviated as ‘FOIA.’ See 5 U.S.C. § 552. His

FOIA request sought records from October 1, 2008, through

6

December 31, 2012, that referenced his name or his acquittal

in state court. He also requested records related to the seizure

of the trash from his Cleveland Heights home as well as Dawn

Pasela’s recordings of him. In addition, Viola requested emails

from Kathryn Clover, a witness who testified against him at

both trials, as well as reports of witness interviews made by the

FBI, technically designated as ‘FD-302s’ but commonly

referred to as ‘FBI-302s,’ that mentioned his name and were

prepared after March 1, 2011. Viola further requested records

regarding Pasela’s death.

In September 2014, after he had been transferred to Federal

Correctional Institution McKean in the Western District of

Pennsylvania, Viola submitted a FOIA request to the Executive

Office for United States Attorneys, an agency within the

Department of Justice. In that request, Viola sought records

“concerning [his] criminal case or any matters involving [him]

or [his] company.” EOUSA FOIA Req. (JA125). That

request, however, did not identify his company by name.

By October 2015, after several rounds of correspondence

with each agency, including a successful administrative appeal

of the FBI’s assertion of a blanket exemption for open

investigatory files, Viola had not received any records in

response to his requests. At that point, Viola was deemed to

have exhausted the administrative process, see 5 U.S.C

§ 552(a)(6)(C)(i), and he elected to initiate a pro se FOIA suit

against EOUSA and the FBI in the Western District of

Pennsylvania, which had subject-matter jurisdiction over the

case.3

3

It is unnecessary to decide whether the source of subject-

matter jurisdiction is the general federal question statute,

28 U.S.C. § 1331, or a provision in FOIA that mentions

jurisdiction, 5 U.S.C. § 552(a)(4)(B). The case arises under

FOIA, a federal statute, so there is federal question jurisdiction.

See 28 U.S.C. § 1331. And even if the reference in FOIA to

7

II. PROCEDURAL HISTORY

While Viola’s suit was pending, the agencies began

producing records in response to his FOIA requests. In

October 2016, EOUSA asserted that it had produced all

responsive records. Its accompanying production consisted of

103 pages released without redactions and seventy-seven pages

released subject to redactions based on the exemptions

permitted by FOIA. See generally 5 U.S.C. § 552(b)(1)–(9).

In February 2017, the FBI completed its production of 647

pages in full and 738 in part. Each agency also produced a

Vaughn index – a document identifying the FOIA exemptions

asserted for each of the redactions and withholdings.4

EOUSA’s Vaughn index indicated that it withheld 649 pages

in full, and the FBI’s Vaughn index indicated that it withheld

1,169 pages in full.

While the agencies were producing records, and based on

the FBI’s partial production, Viola moved to amend his

complaint to add two new parties: the Task Force and Kathryn

jurisdiction is read as conferring exclusive jurisdiction on

certain identified federal courts, the District Court would still

have had subject-matter jurisdiction because Viola, by virtue

of his incarceration, resided in the Western District of

Pennsylvania at the time he initiated this lawsuit. See 5 U.S.C.

§ 552(a)(4)(B).

4

See Coastal States Gas Corp. v. Dep’t of Energy, 644 F.2d

969, 972 (3d Cir. 1981) (“A Vaughn index is a procedural tool

developed in Vaughn v. Rosen, 484 F.2d 820, 826–28

(D.C. Cir. 1973), . . . to enable a district court to evaluate

allegations of exemption advanced by a governmental agency,

and to assure that claimed exemptions are justified under

[FOIA].”); see also Biear v. Att’y Gen., 905 F.3d 151, 154

(3d Cir. 2018) (“[A] Vaughn index[ is] an itemized index

specifying the basis for withholding on a document-by-

document basis.”).

8

Clover. See Fed. R. Civ. P. 15(a). The District Court granted

that motion.

Both newly added defendants then filed motions to dismiss.

They sought dismissal for a lack of personal jurisdiction, see

id. 12(b)(2), and they moved to dismiss for a failure to state a

claim upon which relief could be granted on the theory that

they were not federal agencies subject to FOIA, see id.

12(b)(6).

Those motions were assigned to a Magistrate Judge, who

issued a report and recommendation in favor of granting the

motions. Viola v. U.S. Dep’t of Just., 2017 WL 10294380, at

*1 (W.D. Pa. Aug. 8, 2017). After Viola objected to that report

and recommendation, the District Court agreed with the

dismissal of Clover but vacated the dismissal as to the Task

Force and referred that motion back to the Magistrate Judge.

Viola v. U.S. Dep’t of Just., 2017 WL 10294379, at *2

(W.D. Pa. Sept. 28, 2017).

While those issues were being briefed, EOUSA and the FBI

filed a joint dispositive motion on Viola’s FOIA claims. The

two agencies included, as exhibits to that motion, sworn

statements that addressed the adequacy of their searches for

responsive records and the exemptions identified in the

Vaughn indexes.

Once the briefing was complete, the Magistrate Judge

issued a report and recommendation to dismiss the Task Force

for a lack of personal jurisdiction, Viola v. U.S. Dep’t of Just.,

2018 WL 4599877, at *4–5 (W.D. Pa. May 11, 2018), and to

enter summary judgment in favor of EOUSA and the FBI, id.

at *7. The District Court adopted the Magistrate Judge’s report

and recommendation. Viola v. U.S. Dep’t of Just., 2018 WL

4599859, at *1 (W.D. Pa. June 11, 2018).

Through a timely notice of appeal of that final decision,

Viola invoked this Court’s appellate jurisdiction. See

9

28 U.S.C. § 1291. While that appeal was pending, EOUSA

alerted this Court to its discovery of inaccuracies in its Vaughn

index and requested a voluntary remand for correction of those

errors. This Court granted that request for a partial remand but

retained jurisdiction over the remainder of the appeal, which

was then stayed. Around that time, the District Court

appointed Viola pro bono counsel.5 While that remand was

pending, the FBI filed a motion in this Court to expand the

scope of remand based on its discovery of additional

responsive records – it had excluded some electronic files from

its search – and this Court granted that motion but again

retained jurisdiction.

Each agency significantly supplemented its production

during the partial remand. EOUSA withdrew some of its

withholdings and, subject to both new and revised exemptions,

produced 267 pages in full and 225 pages in part. The FBI did

not assert any new exemptions, but it provided additional

records – its updated production consisted of 1,099 pages in

full and 1,099 pages in part. Both agencies again each

provided a Vaughn index for their supplemental productions.

According to those indexes, in total, EOUSA withheld 278

pages in full and the FBI withheld 6,877 pages in full. After

briefing on the supplemental productions, the District Court

reaffirmed its grant of summary judgment to EOUSA and the

FBI. Viola v. U.S. Dep’t of Just., 2022 WL 2374315, at *1

(W.D. Pa. June 10, 2022).

Viola again filed a timely notice of appeal, and this Court

lifted its stay of the original appeal and consolidated the stayed

case with the newly filed appeal. He now disputes the

dismissal of the Task Force for a lack of personal jurisdiction

5

The Court expresses gratitude for the pro bono services

provided by appointed counsel, in particular to Alan Chen and

Daniel Mejia-Cruz of the Yale Law School Advanced

Appellate Litigation Project, for their commendable advocacy.

10

and the entry of summary judgment in favor of EOUSA and

the FBI.

III. DISCUSSION

A. The District Court lacked personal

jurisdiction over the Task Force.

The District Court dismissed Viola’s claim against the Task

Force on the ground that it lacked personal jurisdiction over the

Task Force. Viola, 2018 WL 4599859, at *1 n.1. Viola now

disputes that ruling. He attempts to meet his burden of

demonstrating personal jurisdiction, not by relying on any

relationship that the Task Force had with Pennsylvania,6 but

rather by arguing that the Task Force waived any challenge to

personal jurisdiction.7 Viola’s theory of waiver is somewhat

novel and consists of two parts: first, he argues that the Task

Force is a federal agency, and second, he contends that FOIA,

6

See generally Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct.,

592 U.S. 351, 358 (2021) (explaining that a federal court’s

power over a defendant depends on “the nature and extent of

‘the defendant’s relationship to the forum State’” (quoting

Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 582 U.S. 255,

262 (2017))); Daimler AG v. Bauman, 571 U.S. 117, 125

(2014) (observing that in civil cases, “[f]ederal courts

ordinarily follow state law in determining the bounds of their

jurisdiction over persons”); O’Connor v. Sandy Lane Hotel

Co., 496 F.3d 312, 316 (3d Cir. 2007) (“Once challenged, the

plaintiff bears the burden of establishing personal

jurisdiction.”).

7

See generally Ins. Corp. of Ir. v. Compagnie des Bauxites de

Guinee, 456 U.S. 694, 703 (1982) (“Because the requirement

of personal jurisdiction represents first of all an individual

right, it can, like other such rights, be waived.”); cf. Fed. R.

Civ. P. 12(h)(1) (stating that a challenge to personal

jurisdiction, venue, process, and service of process may be

waived); 2 Moore’s Federal Practice § 12.31[3] (2025).

11

by authorizing suits against federal agencies in certain district

courts, see 5 U.S.C. § 552(a)(4)(B), waives personal

jurisdiction for federal agencies, cf. Fed. R. Civ. P. 4(k)(1)(C)

(providing that personal jurisdiction can be established as

“authorized by a federal statute”).

For the first part of his argument, Viola contends that the

Task Force is a federal agency because it receives federal

funding and is subject to federal supervision. In Forsham v.

Harris, 445 U.S. 169 (1980), the Supreme Court preserved the

possibility that in some rare circumstances, a non-

governmental entity may constitute an agency for purposes of

FOIA by virtue of its receipt of federal funding coupled with

“extensive, detailed, and virtually day-to-day supervision” by

the federal government. Id. at 180. But cf. United States v.

Orleans, 425 U.S. 807, 817 (1976) (explaining that the federal

government does not create a federal agency just by “giv[ing]

counsel and help” and “mak[ing] available substantial

assistance” (citation omitted)). The Forsham case, however,

involved a group of private physicians and scientists who

received federal grants; it did not concern units of state and

municipal government, much less a task force comprised of

such organizations. Thus, by its own terms, Forsham does not

apply here, and extending it to these circumstances would blur

federalism principles by opening the possibility that, at least

for purposes of FOIA, units of state and local government

could simultaneously be federal agencies. That is far beyond

the text of the FOIA statute,8 so the narrow loophole left open

8

See 5 U.S.C. § 552(f)(1) (defining the term ‘agency’ for

purposes of FOIA primarily through a cross-reference to a

definition in the Administrative Procedure Act, see 5 U.S.C.

§ 551, but then supplementing it to “include[] any executive

department, military department, Government corporation,

Government controlled corporation, or other establishment in

the executive branch of the Government (including the

Executive Office of the President), or any independent

regulatory agency”); id. § 551(1) (defining ‘agency’ as “each

12

by Forsham cannot be widened here: federal funding and

supervision are not sufficient to transform a state or local

governmental entity into a federal agency. And without the

ability to demonstrate that the Task Force constitutes a federal

agency for purposes of FOIA, Viola fails in his challenge to the

District Court’s dismissal of the Task Force for lack of

personal jurisdiction.9

B. Viola’s Civil Enforcement Action

The remainder of Viola’s case seeks relief permitted by

FOIA’s civil enforcement provision – an injunction of the

agencies from withholding records and an order for the

production of agency records improperly withheld. See

5 U.S.C § 552(a)(4)(B). But he did not move for summary

judgment; only the agencies did. See Fed. R. Civ. P. 56(b).

And in doing so, they argued that they discharged their FOIA

search obligations and that each of their specific redactions and

withholdings in full of records was justified such that Viola

was not entitled to any relief. The District Court was persuaded

by the agencies’ positions and entered summary judgment in

their favor. Viola, 2018 WL 4599859, at *1; Viola, 2022 WL

2374315, at *1. Viola now disputes that conclusion.

Specifically, he challenges the adequacy of the searches that

the agencies performed for responsive records, their assertions

authority of the Government of the United States, whether or

not it is within or subject to review by another agency”).

9

In light of this conclusion, it is unnecessary to review the

factual record to determine whether the Task Force actually

received federal funding or was under any form of federal

supervision. It is likewise unnecessary to address the second

part of Viola’s argument, whether FOIA waives personal

jurisdiction for federal agencies. And while the lack of

personal jurisdiction ends the matter, Viola did not submit a

FOIA request to the Task Force, so it is hard to envision a

scenario in which his FOIA claim against the Task Force could

succeed.

13

of Exemptions 6, 7(C), 7(D), and 7(E), and their justifications

for withholding responsive documents in full. In addition,

Viola argues that the District Court did not adequately explain

its rationale for granting summary judgment.

1. EOUSA’s search for records responsive

to Viola’s FOIA request was adequate;

the FBI’s search was not.

Viola disputes the District Court’s conclusion that EOUSA

and the FBI performed adequate searches in response to his

FOIA requests. The widely accepted standard for the adequacy

of an agency’s search comes from the D.C. Circuit’s decision

in Oglesby v. United States Department of the Army, 920 F.2d

57 (D.C. Cir. 1990).10 That standard, which this Circuit has

embraced, see Abdelfattah v. U.S. Dep’t of Homeland Sec.,

488 F.3d 178, 182 (3d Cir. 2007), evaluates the adequacy of an

agency’s search for records responsive to a FOIA request by

examining the agency’s explanation, usually in the form of a

sworn statement, in two respects: the completeness of the

locations and files searched, and the methods used to search

those locations and files, see Oglesby, 920 F.2d at 68. For the

first criterion, the agency must demonstrate that it searched all

locations and files “likely” to have responsive records. Id.; see

also Abdelfattah, 488 F.3d at 182. For the second, the agency

must show that its methods for searching those locations and

files were “reasonably calculated” to find responsive records.

Oglesby, 920 F.2d at 68; see also Weisberg v. U.S. Dep’t of

Just., 705 F.2d 1344, 1351 (D.C. Cir. 1983); Morley v. Cent.

Intel. Agency, 508 F.3d 1108, 1114 (D.C. Cir. 2007);

10

See, e.g., Maynard v. Cent. Intel. Agency, 986 F.2d 547, 559

(1st Cir. 1993); Am. C.L. Union Immigrants’ Rts. Project v.

U.S. Immigr. & Customs Enf’t, 58 F.4th 643, 655 n.15 (2d Cir.

2023); Ethyl Corp. v. U.S. Env’t Prot. Agency, 25 F.3d 1241,

1247 (4th Cir. 1994); Batton v. Evers, 598 F.3d 169, 176

(5th Cir. 2010); Rubman v. U.S. Citizenship & Immigr. Servs.,

800 F.3d 381, 387 (7th Cir. 2015).

14

Abdelfattah, 488 F.3d at 182. Viola challenges the agencies’

searches under both components of the Oglesby standard.

a. The completeness of the locations

searched

Viola argues that EOUSA did not search all locations and

files likely to have responsive records because it searched only

his case file and the files of the Assistant United States

Attorney who prosecuted his case.

Viola’s characterization unfairly shortchanges EOUSA’s

search. In its supporting declaration, EOUSA explained that it

also searched its FOIA storage room, electronic folders, and a

database within the United States Attorney’s Office for the

Northern District of Ohio, which it believed would locate “any

and all records related to Mr. Viola or his business.” Cain

Decl. ¶ 24 (JA671). That suffices under the Oglesby standard.

And although Viola’s FOIA request to EOUSA did not

mention either Dawn Pasela or Kathryn Clover, EOUSA

nonetheless searched the same database and the email of the

AUSA who prosecuted Viola for records related to Pasela or

Clover. In addition, it specifically searched the United States

Attorney’s Office for “tapes, transcripts, or recordings”

regarding Pasela or Clover. Id. ¶ 30 (JA672). By those

actions, EOUSA discharged and indeed surpassed its FOIA

obligations in terms of the locations and files that it searched,

and this aspect of Viola’s challenge is meritless.

With respect to the FBI, Viola argues that its explanation

for the location it searched for responsive records – the Central

Records System – was inadequate. He contends that the FBI

did not explain why it searched only its Central Records

System. See Competitive Enter. Inst. v. Off. of Sci. & Tech.

Pol’y, 827 F.3d 145, 149 (D.C. Cir. 2016) (“[T]he agency must

search and disclose records that [are] not on its premises but

[are] under its ‘constructive control.’” (quoting Burka v. U.S.

Dep’t of Health & Hum. Servs., 87 F.3d 508, 515 (D.C. Cir.

1996))).

15

Here, Viola has a point. The FBI explained that records

responsive to his FOIA request “would reasonably be expected

to be located in” its Central Records System. 3d Seidel Decl.

¶ 28 (JA746). At face value, the FBI’s explanation is

inadequate. The Oglesby standard requires more than a search

of the locations “most likely” to have responsive records; it

demands that an agency search all locations likely to have

responsive records. Oglesby, 920 F.2d at 67–68 (citation

omitted); see also DiBacco v. U.S. Army, 795 F.3d 178, 190

(D.C. Cir. 2015) (“‘[M]ost likely’ is not the relevant metric.”).

And the FBI did not expressly ‘close the loop’ by stating that

no location other than its Central Records System would likely

have records responsive to Viola’s FOIA request. Cf.

Campbell v. U.S. Dep’t of Just., 164 F.3d 20, 28 (D.C. Cir.

1998) (recognizing that an agency has “discretion to confine its

inquiry to a central filing system if additional searches are

unlikely to produce any marginal return”); see also Oglesby,

920 F.2d at 68 (explaining that an agency need not “search

every record system”). Nor is there a readily apparent basis for

reasonably inferring such closure.11 Thus, without closing the

Oglesby loop either expressly or through reasonable inference,

the FBI was not entitled to summary judgment as to the

11

In pro se FOIA litigation in the District Court for the District

of Columbia about separate FOIA requests, Viola

unsuccessfully argued that the FBI had constructive control

over records within the Task Force’s possession. Viola v. U.S.

Dep’t of Just., 2019 WL 2437692, at *3 (D.D.C. June 11,

2019) (concluding that “the [Task Force’s] records are not

subject to control by the EOUSA or any other federal entity”).

The FBI now argues that under collateral estoppel, that issue

cannot be relitigated here, and thus the scope of its search was

adequate. But even if the Task Force was not reasonably likely

to have FBI records within the FBI’s constructive control, the

FBI did not adequately indicate that the remainder of its record

systems were not likely to have any responsive records.

16

adequacy of the locations and files that it searched. See

DiBacco, 795 F.3d at 188.

b. The reasonableness of the

agencies’ search methods

Viola also argues that neither EOUSA nor the FBI used

reasonable methods to search the locations and files for

responsive records.

He faults EOUSA because it searched only files relating to

him for information about his company, Realty Corporation of

America. EOUSA justified that approach on the premise that

all records related to Realty Corporation of America would be

in the same location as records related to Viola. It is not

necessary to address the adequacy of EOUSA’s justification,

however, because a FOIA request must on its face reasonably

identify the requested information. See Miller v. Casey,

730 F.2d 773, 777 (D.C. Cir. 1984) (“The agency [is] bound to

read [a FOIA request] as drafted, not as either agency officials

or [the requester] might wish it was drafted.”). And here

Viola’s FOIA request sought records “concerning . . . any

matters involving [him] or [his] company” without identifying

his company by name. EOUSA FOIA Req. (JA125). That is

not a reasonably specific request, especially since Viola had

ownership interests in multiple business associations. Because

of that deficiency in the FOIA request itself, EOUSA was

under no obligation to search for information related to Viola’s

unidentified company, and in attempting to locate records

related to Realty Corporation of America, EOUSA again

exceeded its FOIA search obligations. See generally TD Bank

N.A. v. Hill, 928 F.3d 259, 270 (3d Cir. 2019) (“[The Court]

may affirm on any basis supported by the record, even if it

departs from the District Court’s rationale.”).

Viola additionally asserts that EOUSA’s search method

was unreasonable because the Assistant United States Attorney

whom Viola accused of misconduct was allowed to search for

records regarding Pasela or Clover. Viola’s suspicions as to

17

the AUSA’s misconduct are based on the AUSA’s resignation

after an internal investigation. But, in tasking that AUSA – the

one assigned to prosecute Viola – with partial responsibility for

finding agency records regarding Viola or his company,

EOUSA relied on the person with arguably the most

knowledge about potentially responsive records to search for

those records. And it takes more than a FOIA requestor’s

suspicions and accusations of an agency employee to render a

FOIA search performed by that employee unreasonable. Even

more, that AUSA was not the sole person responsible for

searching those files: his legal assistant and the FOIA contact

for the United States Attorney’s Office for the Northern

District of Ohio also conducted that search. Thus, EOUSA

performed an otherwise reasonable search.

As to the FBI, Viola argues that its search method was

deficient because it searched only files indexed by his name

and his casefile. Viola contends that a broader search was

needed for his requests for information about (i) Pasela’s

recordings of him; (ii) the FBI-302s dated after March 1, 2011,

that specifically mentioned his name; (iii) emails from Clover

to the FBI about him; and (iv) information regarding Pasela’s

death. With respect to the first three categories, Viola

requested only those records pertaining to Pasela’s recordings,

FBI-302s, and emails from Clover that also mentioned his

name, and so it was reasonable for the FBI to search only files

indexed by Viola’s name and his casefile. But as to records

regarding Pasela’s death, Viola’s FOIA request was not limited

to records that mentioned his name. Although this aspect of

Viola’s request was comparatively broader than the others, the

FBI did not correspondingly expand its search method.

Instead, it asserted that “[c]onsidering the nature of the

specifically requested items, it is reasonable for the FBI to

conclude that if such records existed in the [Central Records

System], then they would be indexed to Plaintiff.” 3d Seidel

Decl. ¶ 30 (JA746–47). That statement does not explain why

all of the records regarding Pasela’s death would likely be

indexed by Viola’s name or in his casefile. And with that gap

18

in reasoning, the FBI failed to justify the reasonableness of its

search in response to Viola’s request for records relating to

Pasela’s death.

2. EOUSA and the FBI did not sufficiently

justify all of their assertions of FOIA

exemptions.

EOUSA withheld 272 pages in full and 225 pages in part

based on Exemptions 3, 5, 6, and 7(C). The FBI withheld

6,877 pages in full and 1,099 pages in part based on

Exemptions 3, 6, 7(C), 7(D), and 7(E). On appeal, Viola

challenges EOUSA’s and the FBI’s assertions of Exemptions 6

and 7(C) and the FBI’s assertions of Exemptions 7(D) and

7(E).

a. Exemptions 6 and 7(C)

To protect the privacy interests of third parties mentioned

in records responsive to Viola’s FOIA requests, EOUSA and

the FBI asserted Exemptions 6 and 7(C). Exemption 6 protects

privacy generally by permitting an agency to withhold

“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). Exemption 7(C)

provides a greater degree of protection in the context of

“records or information compiled for law enforcement

purposes” by allowing agencies to withhold information that

“could reasonably be expected to constitute an unwarranted

invasion of personal privacy.” Id. § 552(b)(7)(C). Although

the textual scope of the two exemptions differs, both are

evaluated by balancing “the public interest served by

disclosure against the harm resulting from the invasion of

privacy,” with the balance more readily protecting information

subject to Exemption 7(C) than Exemption 6 materials. Int’l

Bhd. of Elec. Workers Loc. Union No. 5 v. U.S. Dep’t of Hous.

& Urb. Dev., 852 F.2d 87, 89 (3d Cir. 1988); see also Sheet

Metal Workers Int’l Ass’n, Loc. Union No. 19 v. U.S. Dep’t of

Veterans Affs., 135 F.3d 891, 898 (3d Cir. 1998).

19

Those two exemptions were the ones most frequently

asserted by the agencies in withholding information responsive

to Viola’s FOIA requests. EOUSA relied on at least one of

those exemptions for 155 out of the 278 pages that it withheld

in full and for redactions to all 225 of the pages that it released

in part. The FBI always invoked Exemptions 6 and 7(C) in

tandem, and they formed at least one of the grounds for each

of the 6,877 pages it withheld in full and for all but five of the

1,099 pages it released in part.

Perhaps due to the frequency of the agencies’ assertions of

those exemptions, Viola’s primary attack is general in nature:

he contends that the agencies provided only “generic

justifications” for invoking them. Viola’s Opening Br. 43. But

an agency’s justification for FOIA redactions or withholdings

is not deficient if it allows for meaningful challenges to the

applicability of an exemption. See Davin v. U.S. Dep’t of Just.,

60 F.3d 1043, 1049 (3d Cir. 1995) (explaining that “the

agency’s explanation [must be] full and specific enough to

afford the FOIA requester a meaningful opportunity to contest,

and the district court an adequate foundation to review, the

soundness of the withholding” (quoting McDonnell v. United

States, 4 F.3d 1227, 1242 (3d Cir. 1993))); see also Campbell,

164 F.3d at 34 (explaining that the reviewing court must have

enough factual information to perform a “meaningful” review).

Here, to justify their withholdings, the agencies produced

Vaughn indexes and corresponding supporting sworn

statements – in addition to the records that they produced with

partial redactions. EOUSA’s format for its Vaughn index is

beyond reproach: it described each document subject to

redaction and identified with particularity the basis for each

privacy exemption through explanations such as “[s]ocial

security number redacted” and “[n]ames and email addresses

redacted.” EOUSA 2020 Vaughn Index 1–2 (JA652–53). The

FBI took a different approach – its Vaughn index provided a

document-by-document, page-by-page description of its

withholdings, and for purposes of Exemptions 6 and 7(C), it

20

grouped the persons whose information was redacted on

privacy grounds into nine categories.12 Such a grouping for an

exemption’s applicability is permissible if the agency’s

explanation specifically describes the categories and

“correlate[s] the claimed exemptions to the withheld

documents.” Davin, 60 F.3d at 1051; see also Jud. Watch, Inc.

v. Food & Drug Admin., 449 F.3d 141, 147 (D.C. Cir. 2006)

(asserting that an agency need not provide “repetitive, detailed

explanations for each piece of withheld information”). The

FBI’s Vaughn index meets that standard.

Nor is there a broad problem with the agencies’ supporting

sworn statements. Those assessed the privacy interests for

each person or category of persons, considered the public

interests associated with the disclosure of that information, and

then balanced the privacy interests against the public interests.

It may be that in some instances those explanations do not

justify a particular redaction or withholding in full, but both

agencies’ overall approaches to their exemptions allow for

meaningful, specific challenges to individual redactions and

withholdings in full. Thus, Viola’s general challenge to the

adequacy of the agencies’ methods for justifying their assertion

of FOIA exemptions fails.

12

Those categories were “FBI Special Agents and Support

Personnel”; “Non-FBI Federal Government Personnel”;

“Local/State Law Enforcement Personnel”; “Local/State

Government Personnel”; “Third Parties of Investigative

Interest”; “Third Parties [W]ho Provided Information to the

FBI”; “Third Parties Merely Mentioned”; “Third Party

Victims”; and “Third Party Individuals [Whose Information

Was Collected] by a Private Investigation Firm Hired by

Anthony Viola.” FBI 2020 Vaughn Index A-1–A-2 (JA841–

42).

21

Consistent with that conclusion, Viola disputes four

applications of Exemptions 6 and 7(C).13 With respect to

EOUSA, he contests its reliance on those exemptions with

respect to marked trial exhibits; an ethics complaint that Viola

made against his lawyer along with related correspondence;

and witness statements and interviews. For the FBI, Viola

challenges the redactions to a single document that it produced

– handwritten notes from a third-party interview discussing

Viola.

i. The Withheld Trial Exhibits

As to EOUSA’s documents marked as trial exhibits, Viola

challenges the withholding of seven in full and the release of

three in part based on Exemptions 6 and 7(C).

Some of those documents were identified as government

exhibits. That is noteworthy because once a document is

identified as a government exhibit for a public hearing, that

indicates that the government has already weighed the public

and private interests related to that document’s disclosure and

decided that, if helpful to the government, the information

would become publicly known. In that circumstance, in which

otherwise private information is ready for public release, much

of the balancing required for Exemptions 6 and 7(C) has

already been resolved – in favor of disclosure. Thus, when an

agency seeks to withhold a document that has been identified

as a government trial exhibit on the basis of Exemption 6

or 7(C), it must show not only that the exhibit was not used at

a public trial but also that the reason for its non-use was

grounded in personal privacy considerations as opposed to trial

13

EOUSA and the FBI also explained that their withholdings

in full of documents under Exemptions 6 and 7(C) were based

on their conclusions that the remainders of those documents

were not reasonably segregable from the exempted portions.

Viola does not develop a challenge to those general assertions

regarding reasonable segregability.

22

strategy. But cf. Cottone v. Reno, 193 F.3d 550, 556 (D.C. Cir.

1999) (holding that for purposes of Exemption 3 – statutorily

protected information, see 5 U.S.C. § 552(b)(3) – there must

be actual use of the exhibit at trial).14 EOUSA has not provided

such a justification here for the documents identified as

government trial exhibits.

The remainder of the exhibits were identified as defense

exhibits, and EOUSA has treated those as agency records in

withholding information in them pursuant to FOIA

exemptions. Cf. generally U.S. Dep’t of Just. v. Tax Analysts,

492 U.S. 136, 144–45 (1989) (articulating criteria for agency

records); Project on Predatory Lending of the Legal Servs. Ctr.

of Harvard L. Sch. v. U.S. Dep’t of Just., 325 F. Supp. 3d 638,

648–54 (W.D. Pa. 2018) (evaluating whether documents

received by a United States Attorney’s Office in civil discovery

qualified as agency records). With little else known about

those documents beyond their designation as defense exhibits

and EOUSA’s treatment of them as agency records, EOUSA

has not provided enough information to balance privacy

concerns against the public interest in their disclosure.

Thus, EOUSA has not met its burden of justifying the

application of Exemptions 6 or 7(C) to documents identified as

defense exhibits.

ii. The Ethics Complaint and

Correspondence with

Disciplinary Counsel

Viola also contests EOUSA’s redactions in three

documents related to a grievance he filed against his attorney.

14

EOUSA asserted Exemption 3 for two trial exhibits, but not

ones for which it invoked Exemption 6 or Exemption 7(C), and

Viola does not contest the application of that exemption.

23

The first document was a complaint about his attorney that

Viola submitted to the Cleveland Metropolitan Bar

Association. EOUSA invoked Exemption 6 to redact an

address, date of birth, and home phone number. Those items

implicate personal privacy concerns. See Int’l Bhd., 852 F.2d

at 89. While there may be some public interest in that

information, there is little reason to believe that any such public

interest increases the transparency of the operations of EOUSA

or other federal agencies. And when the public interest in

information has little bearing on the operations or activities of

federal agencies, the balance more readily tips in favor of the

privacy interests. See U.S. Dep’t of Def. v. Fed. Lab. Rels.

Auth., 510 U.S. 487, 495 (1994) (“[T]he only relevant ‘public

interest in disclosure’ to be weighed . . . is the extent to which

disclosure would serve the ‘core purpose of the FOIA,’ which

is ‘contribut[ing] significantly to public understanding of the

operations or activities of the government.’” (third alteration

in original) (first emphasis added) (quoting U.S. Dep’t of Just.

v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 775

(1989))); Reps. Comm., 489 U.S. at 773 (explaining that FOIA

was not designed to disclose “information about private

citizens that is accumulated in various governmental files but

that reveals little or nothing about an agency’s own conduct”).

Thus, EOUSA’s redactions to this document were permissible.

That same analytical framework applies to the other two

documents, which were letters from the Disciplinary Counsel

of the Supreme Court of Ohio that EOUSA produced subject

to redactions of the name and signature on the letter. The

specific signatory of the letters from the Ohio Disciplinary

Counsel sheds very little light on the “operations or activities”

of a federal agency, and hence there is not a high degree of

public interest in that person’s identity. Fed. Lab. Rels. Auth.,

510 U.S. at 495 (emphasis removed) (quoting Reps. Comm.,

489 U.S. at 775). But Disciplinary Counsel is itself a public

office in Ohio, see Office of Disciplinary Counsel of the

Supreme Court of Ohio, Frequently Asked Questions,

https://odc.ohio.gov/faq (choose “What is the Office of

24

Disciplinary Counsel?”) [https://perma.cc/3YLM-VTMQ],

and thus if the signatory were a public officeholder – as

opposed to a staff member in that office – then there is little

privacy interest that the public officeholder has in the

correspondence sent from his or her office. Accordingly, the

balance weighs in favor of disclosure if the signatory is a public

official and against disclosure if the signatory is a staff member

in that office. But here, because EOUSA has not provided

additional details that would rule out a public officeholder as

the signatory, it has not met its burden for justifying the

redaction of that information from those two letters.

iii. The Withheld Witness

Statements and Interviews

Viola also contends that EOUSA improperly relied on

Exemptions 6 and 7(C) to withhold fifteen witness statements

and interviews in full and one in part to protect the identity of

the witnesses. While the witnesses have some privacy interests

in preventing the disclosure of their personally identifiable

information in EOUSA’s files, EOUSA did little to justify

these withholdings – almost as if there were a FOIA exemption

permitting the withholding of all witness statements. Cf.

5 U.S.C. § 552(b)(7)(D) (allowing the withholding of

information related to confidential sources). Instead of

providing a basis for any specific redactions,15 much less for

withholding the documents in their entirety, EOUSA stated

that the documents contained information that was

“inextricably intertwined” with the exempt information.

EOUSA 2020 Vaughn Index 7 (JA658). Yet without

additional context, such a conclusory statement has little

persuasive value. See Ferri v. Bell, 645 F.2d 1213, 1217

(3d Cir. 1981) (explaining that privacy interests must be

examined in context). In short, there is no recognized blanket

rule that the balance of privacy concerns and public interests

15

It did, however, clarify that for the document released in part,

it redacted just the signature.

25

favors withholding witness statements, and the justifications

offered by EOUSA for redacting and withholding in full the

fifteen witness statements are insufficient.

iv. The Handwritten Notes

from a Third-Party

Interview

Viola specifically challenges only one FBI document –

handwritten notes from a third-party interview discussing

Viola that the FBI withheld in part pursuant to Exemptions 6

and 7(C). Viola challenges the redactions made to those notes

on the ground that the interviewee appeared at times to refer to

previous statements that Viola had made, and from there, Viola

contends that the redacted portions of the notes must not

contain any personally identifiable information. That

argument lies more in conjecture than sound logic, and it does

not fare well against the concrete explanation that the FBI

provided in its declaration, which was that the documents did

contain personally identifying information about private

individuals who were the targets of FBI investigations,

cooperated with the FBI, were victims of Viola, or were

otherwise mentioned in the files and would be harmed by the

disclosure of their information. Thus, Viola comes nowhere

close to overcoming the FBI’s justification for these

redactions.

b. Exemption 7(D)

To protect the identities of its confidential sources, the FBI

invoked Exemption 7(D). By its terms, that exemption

authorizes withholding “records or information compiled for

law enforcement purposes” that “could reasonably be expected

to disclose the identity of a confidential source.” 5 U.S.C.

§ 552(b)(7)(D). In addition, it permits withholding

“information furnished by a confidential source” when that

information is compiled by a criminal law enforcement

authority in the course of a criminal investigation (or a national

security intelligence investigation). Id. The FBI applied

26

Exemption 7(D) to twenty-three FBI-302s,16 thirty-two sets of

handwritten notes used to prepare the FBI-302s,17 four sets of

notes of non-FBI-302 third-party interviews,18 and fifteen

documents related to third-party messages and financial

documents.19

As with any exemption, an agency asserting

Exemption 7(D) bears the burden of proving its applicability.

See U.S. Dep’t of Just. v. Landano, 508 U.S. 165, 171 (1993);

see also 5 U.S.C. § 552(a)(4)(B) (imposing the burden on an

agency that withholds information responsive to a FOIA

request to sustain the withholding). And here, Viola argues

that the FBI did not satisfy one component of its burden with

respect to its Exemption 7(D) withholding: proof that the

identity of the source was confidential.

The confidentiality of a source is not presumed from that

source’s voluntary provision of information to a law

enforcement agency. See Landano, 508 U.S. at 181 (“[T]he

Government is not entitled to a presumption that a source is

confidential within the meaning of Exemption 7(D) whenever

the source provides information to the FBI in the course of a

criminal investigation.”). Rather, for the FBI to demonstrate

confidentiality, it must show that “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.” Id. at 174.

16

The FBI made redactions to sixty pages of the FBI-302s, and

it withheld another thirty-one pages in full.

17

The FBI made redactions to 141 pages of those handwritten

notes, and it withheld ninety-six pages in full.

18

The FBI made redactions to four pages, and it withheld none

of those documents in full.

19

The FBI withheld twenty-four pages of those documents in

full.

27

The FBI can meet that standard by showing that it gave the

source an express assurance of confidentiality or by relying on

circumstances that make the assurance of confidentiality

implicit. See id. at 172 (citing S. Rep. No. 93-1200, at 13

(1974)); Davin, 60 F.3d at 1061.

In this appeal, the FBI does not argue that it gave any source

an express assurance of confidentiality; instead, it contends

that under the circumstances, the sources received implied

assurances of confidentiality. The Supreme Court has

recognized two circumstances in which an implied assurance

of confidentiality may be inferred: the “character of the crime

at issue” and the “source’s relation to the crime.” Landano,

508 U.S. at 179. Both of those circumstances are ‘FOIA

workable’ in the sense that they do not necessarily require an

agency to disclose additional exempted or otherwise

confidential information to justify a withholding or redaction.

See id. at 180 (emphasizing the importance of workable FOIA

standards to minimize “the extent that the Government’s

proof” that an asserted exemption applies “may compromise

legitimate interests”); H.R. Rep. No. 89-1497, at 6 (1966) (“It

is vital to our way of life to reach a workable balance between

the right of the public to know and the need of the Government

to keep information in confidence to the extent necessary

without permitting indiscriminate secrecy.”).20 For the first

recognized circumstance, when the character of the crime at

issue is publicly known, it may be possible to infer serious

dangers associated with providing information to law

enforcement, and thus, an agency need not disclose any

exempted or otherwise confidential information to justify an

20

Cf. Halpern v. Fed. Bureau of Investigation, 181 F.3d 279,

294 (2d Cir. 1999) (explaining that a “workable solution”

involves supporting withholdings with information “that is not

only specific enough to obviate the need for an in camera

review[] but that also enables the court to review the agency’s

claimed redactions without having to pull the contextual

information out of the redacted documents for itself”).

28

implied assurance of confidentiality for purposes of

Exemption 7(D). See Landano, 508 U.S. at 179 (opining that

an implied assurance of confidentiality may be reasonably

inferred when the source witnessed a gang-related murder).

Similarly, the source’s relation to the crime can be FOIA

workable. If a source provides evidence against an

organization known for “engag[ing] in acts of violence or

harassment[] or threaten[ing] to do so,” then an implied

assurance of confidentiality may be inferred for that source.

Davin, 60 F.3d at 1063.

The FBI, however, does not rely on either of those FOIA-

workable circumstances for implying an assurance of

confidentiality. Instead, it contends, first, that the information

provided by the sources is singular such that knowing the

information would reveal the identity of the source and,

second, that the consequences for disclosing the source’s

identity would be “disastrous.” 3d Seidel Decl. ¶ 70 (JA770).

The FBI is correct that, if proven, singularity of information

coupled with disastrous consequences for the source would

allow a reasonable inference that the source of the singular

information received an implied assurance of confidentiality.

The drawback of the singularity-plus-consequences approach

to Exemption 7(D) is that additional details are needed to

establish singularity and the disastrous consequences

therefrom. Singularity requires evidence, at least at a general

level, that only the source could have provided the information.

And the forecasted disastrous consequences must be identified

and be caused by persons or groups who could ascertain the

source from the singularity of the information provided.

Because those extra layers of detail – many of which may

themselves be confidential – are needed to establish the

singularity-plus-consequences method of implying an

assurance of confidentiality, that approach is not nearly as

FOIA workable as the two circumstances recognized by the

Supreme Court from which an assurance of confidentiality can

be inferred. Thus, when a law enforcement agency relies on a

singularity-plus-consequences approach to demonstrate an

29

implied grant of confidentiality, it will need to supply

additional evidence for its position, and that may entail in

camera submissions. See Landano, 508 U.S. at 180

(recognizing that when “the Government’s proof may

compromise legitimate interests, . . . the Government still can

attempt to meet its burden with in camera affidavits”).

Here, setting aside its wholly conclusory statements about

singularity and disastrous consequences, the FBI, which did

not make any in camera submissions, has not provided the

factual details needed to support a reasonable inference of an

implied grant of confidentiality. The FBI’s sworn statements

and Vaughn indexes do not identify the number of confidential

sources. That alone renders impossible any meaningful

singularity analysis, since singularity necessarily depends on

there being a sole source for the information provided. The

FBI likewise does not indicate how the persons or groups who

could recognize the source from the information provided

would be likely to retaliate against the source – let alone inflict

disastrous consequences on the source.

In sum, the FBI’s approach to implying an assurance of

confidentiality is not as FOIA workable as the two narrow

circumstances identified by the Supreme Court, and here, the

FBI does not provide the comparatively greater amount of

support needed to justify the conclusion that the sources

received an implied assurance of confidentiality. And without

demonstrating that any of the information was properly

redacted, the FBI has also failed to establish that it has

produced all reasonably segregable non-redacted information

in response records. See Davin, 60 F.3d at 105; see also Mead

Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242,

260 (D.C. Cir. 1977). Thus, neither its specific redactions nor

its withholding of pages in full under Exemption 7(D) can be

sustained on this record.

30

c. Exemption 7(E)

The FBI also asserted another of the law enforcement

exemptions, Exemption 7(E), with respect to five categories of

information. See generally Davin, 60 F.3d at 1051 (permitting

agency use of categorical identifiers for FOIA exemptions).

That exemption allows withholding information in agency

records related to “techniques and procedures for law

enforcement investigations or prosecutions, or . . . 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).

On appeal, Viola challenges the FBI’s use of that

exemption as to one of the identified categories of information.

The FBI designated that category as “(b)(7)(E)-7” and

described it as referring to search results from the National

Crime Information Center’s database concerning information

that was requested by and provided to law enforcement

agencies. FBI 2020 Vaughn Index A-2 (JA842).21 The FBI

identified twenty-two documents, totaling twenty-seven pages,

within that category, and those were dated either April 29 or

April 30, 2009.

To justify its withholding in full of those documents, the

FBI relied only on the techniques-and-procedures prong of

21

The FBI provided the following descriptions for the four

other categories of information that it was withholding under

Exemption 7(E): Category (b)(7)(E)-1 for the effectiveness

rating of statistical information contained in FBI Internal

Database Form FD-515; Category (b)(7)(E)-5 for the

collection, methodology, and analysis of investigative

information obtained during searches of internal FBI

databases; Category (b)(7)(E)-8 for internal FBI secure email,

IP addresses, and internet/web addresses; and

Category (b)(7)(E)-9 for Computer Analysis Response Team

examination results.

31

Exemption 7(E) – not that exemption’s guidelines prong.22

The techniques-and-procedures prong does not apply to

“routine techniques and procedures already well-known to the

public, such as ballistic tests, fingerprinting, and other

[common] scientific tests” but rather only to techniques and

procedures that are not widely known. Ferri, 645 F.2d at 1224;

see also Davin, 60 F.3d at 1064. In support of its application

of Exemption 7(E) to the NCIC reports, the FBI averred that

the release of those specific database reports would allow

individuals to “surmise what agency and when and how that

agency was able to obtain information concerning their

criminal activities.” 3d Seidel Decl. ¶ 87 (JA780).

The problem for the FBI is that its justification for applying

Exemption 7(E) requires an extension of the plain text of the

statute. See 5 U.S.C. § 552(b)(7)(E). A request by a law

enforcement agency for information from the NCIC database

is itself a technique or procedure – and one that the FBI readily

acknowledges, which makes it a technique or procedure

common enough to fall outside of the protection of

Exemption 7(E). Indeed, the FBI is not trying to protect

disclosure of the practice of law enforcement agencies making

requests to the NCIC database; instead, it attempts to withhold

the results of that well-known technique. But without more,

neither the specifics of a NCIC search request – including the

identity of the requesting entity, the date of the request, and the

22

See Davin, 60 F.3d at 1064 (interpreting the requirement that

“disclosure could be reasonably expected to risk circumvention

of the law” as applying to the techniques-and-procedures prong

as well as the guidelines prong (quoting 5 U.S.C. § 552(b)(7));

Blackwell v. Fed. Bureau of Investigation, 646 F.3d 37, 42

(D.C. Cir. 2011) (same). But see Grey v. Alfonso-Royals,

140 F.4th 173, 179 (4th Cir. 2025) (interpreting the

requirement as applying to only the guidelines prong);

Hamdan v. Dep’t of Just., 797 F.3d 759, 778 (9th Cir. 2015)

(same); Allard K. Lowenstein Int’l Hum. Rts. Project v. Dep’t

of Homeland Sec., 626 F.3d 678, 681 (2d Cir. 2010) (same).

32

nature of the request – nor the details of the search result can

be fairly understood as a law enforcement technique or

procedure.

Tellingly, the FBI does not make that argument. Instead, it

attempts to justify its application of Exemption 7(E) to

information related to NCIC database searches by emphasizing

that “[p]ublic confirmation of NCIC queries would alert

individuals that they may be the subject of an investigation by

a particular law enforcement agency.” 3d Seidel Decl. ¶ 87

(JA780). That is certainly a legitimate law enforcement

concern. But Congress separately accounted for that interest

with Exemption 7(A), which applies when the production of

“law enforcement records or information . . . could reasonably

be expected to interfere with enforcement proceedings.”

5 U.S.C. § 552(b)(7); see also NLRB v. Robbins Tire & Rubber

Co., 437 U.S. 214, 225 (1978) (explaining that

Exemption 7(A) applies not only to active litigation but also to

investigations). And in moving for summary judgment in

2017, the FBI did not assert Exemption 7(A) over the NCIC

database search results from April 2009. The potential

application of Exemption 7(A) to preserve the interests the FBI

identifies coupled with its non-assertion here confirms that it is

incorrect to extend Exemption 7(E) beyond its text so that it

would cover not only techniques and procedures but also the

results of the everyday application of widely known law

enforcement techniques and procedures. See Davin, 60 F.3d at

1064 (rejecting the FBI’s assertion of Exemption 7(E) over

well-known techniques unless the government offers specific

evidence that the information would risk circumvention of the

law). Accordingly, the FBI has failed to justify its application

of Exemption 7(E) to the identified documents. In addition,

because the FBI did not attempt to segregate exempted material

from nonexempted material within the NCIC results, its

justification for withholding in full is likewise inadequate.

33

C. Viola’s challenge to the adequacy of the

District Court’s summary judgment opinion

is unsuccessful.

Viola additionally disputes the adequacy of the District

Court’s explanation for its decision granting summary

judgment in favor of the federal agencies. His argument is

premised on a supervisory rule announced in Coastal States

Gas Corp. v. Department of Energy, 644 F.2d 969 (3d Cir.

1981), which requires that district courts “state explicitly the

legal basis as well as the findings that are necessary to

demonstrate that the documents are exempt or disclosable

under the FOIA.” Id. at 980. But a district court’s findings of

fact and conclusions of law, while helpful, are not essential

when an appellate court engages in de novo review because that

form of review is a fresh look, undertaken as if there had been

no prior district court decision. See Choctaw Nation v. United

States, 119 U.S. 1, 30 (1886) (explaining that de novo review

involves review “from the beginning, and as if the [case] were

new and had freshly arisen” in that court); cf. Fed. R. Civ.

P. 52(a)(1) (requiring district courts to make findings of fact

and conclusions of law in cases tried “without a jury or with an

advisory jury”). And indeed, on de novo review of the District

Court record in this case, it was possible to resolve each of

Viola’s challenges. Thus, any error by the District Court in its

explanation was harmless. See Fed. R. Civ. P. 61 (“At every

stage of the proceeding, the court must disregard all errors and

defects that do not affect any party’s substantial rights.”);

Morgan v. Covington Township, 648 F.3d 172, 180 (3d Cir.

2011) (“[A]s . . . the Federal Rules of Civil Procedure . . . make

clear, ‘[a]n error that is harmless is not grounds for disturbing

a judgment.’” (alteration in original) (quoting Burkhart v.

Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1214

(D.C. Cir. 1997))). So because the most that Viola could

establish would be harmless error, his challenge to the

adequacy of the District Court’s explanation fails.

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IV. CONCLUSION

For these reasons, the District Court’s orders will be

affirmed in part, vacated in part, and remanded for further

proceedings. In particular, the District Court’s order granting

the Task Force’s motion to dismiss for a lack of personal

jurisdiction is affirmed. The order granting summary judgment

for EOUSA is affirmed with respect to its search obligations

but vacated and remanded with respect to its redactions and

withholdings in full of trial exhibits, correspondence with

disciplinary counsel, and witness statements based on

Exemptions 6 and 7(C). The order granting summary

judgment for the FBI is affirmed with respect to its search for

records related to Pasela’s recordings, FBI-302s, and Clover

that mentioned Viola’s name, as well as to its redactions and

withholdings under Exemptions 6 and 7(C). But it is vacated

and remanded with respect to the locations searched, the

method of searching for records relating to Pasela’s death, and

the FBI’s redactions and withholdings in full under

Exemptions 7(D) and 7(E). Because only EOUSA and the FBI

– not Viola – moved for summary judgment, on remand, Viola

may move for summary judgment, and the District Court may,

in its discretion, permit EOUSA and the FBI to move for

summary judgment again, based on revised searches,

explanations, and segregability analyses, for the remanded

portions of this case.

35