Sciacca v. Federal Bureau of Investigation

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

ANTHONY SCIACCA, )

)

Plaintiff, )

)

v. ) Civil Action No. 08-cv-2030 (KBJ)(JMF)

)

FEDERAL BUREAU OF )

INVESTIGATION, et al., )

)

Defendants. )

)

MEMORANDUM OPINION

The Federal Bureau of Investigation (“FBI”) began to investigate Plaintiff

Anthony Sciacca (“Sciacca”) in the late 1990s as part of a wider investigation into an

organized crime group. (Second Declaration of David M. Hardy (“Hardy Decl.”), ECF

No. 12-1, ¶ 5.) On May 7, 2001, Sciacca pled guilty in the United States District Court

for the Eastern District of New York to a charge of racketeering in violation of 18

U.S.C. § 1962(c), and on November 8, 2001, a judge of that court sentenced Sciacca to

23 years in federal prison, where he remains to this day. (Id. ¶¶ 5-6.) Sciacca has

brought this action against the FBI, the Department of Justice (“DOJ”), and DOJ’s

Office of Information and Privacy (“OIP”) (collectively, “Defendants”) alleging that

Defendants have mishandled a document request that Sciacca submitted in 2006,

pursuant to the Freedom of Information Act, 5 U.S.C. § 552, (“FOIA”). (See generally

Complaint (“Compl.”), ECF No. 1.) Defendants filed a motion for summary judgment

on May 4, 2009, which the Court referred to Magistrate Judge John M. Facciola.

1

On February 16, 2012, Magistrate Judge Facciola issued a Report and

Recommendation finding that the Court should deny Defendants’ summary judgment

motion. As discussed further below, because Defendants have failed to provide this

Court with sufficient information to evaluate the propriety of the various FOIA

exemptions that Defendants have invoked to withhold and redact presumably responsive

documents, the Court will adopt the Report and Recommendation as a part of its

opinion and DENY Defendants’ summary judgment motion without prejudice. As the

Order accompanying this Memorandum Opinion states, Defendants will now have the

opportunity to submit supplemental declarations and/or a Vaughn index that provides

the necessary information.

I. BACKGROUND & PROCEDURAL HISTORY

On December 19, 2006, Sciacca submitted a FOIA request to the FBI’s New

York Field Office seeking documents related to his criminal case. (Hardy Decl. ¶ 7.)

Specifically, Sciacca requested: “all records in possession of the Federal Bureau of

Investigation on myself or which makes reference to myself.” (See Hardy Decl.,

Exhibit A, ECF No. 12-2, at 2.)

On November 15, 2007, the FBI informed Sciacca that they had been unable to

locate any documents responsive to his request, claiming that Sciacca’s case documents

were not in their expected storage location and could not be found elsewhere after a

reasonable period of time. (Hardy Decl. ¶ 11.) The FBI further notified Sciacca that

he had a right to appeal this “unable to locate” result to the OIP. (Id.) Sciacca availed

himself of this appeal on December 3, 2007. (Id. ¶ 12.)

2

On March 3, 2008, the OIP advised Sciacca that relevant records had been found

after a second search, but that the FBI would nonetheless withhold all of the records

pursuant to FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A), which exempts from the

reach of FOIA “records or information compiled for law enforcement purposes” to the

extent the production of such records “could reasonably be expected to interfere with

enforcement proceedings.” (Id. ¶ 14.) Then, on November 16, 2008, Sciacca filed suit

in this Court. (See Compl.) Sciacca styled his complaint as alleging violations of his

due process and equal protection rights; however, the substance of his complaint is

simply an allegation that the FBI violated the FOIA statute in its handling of Sciacca’s

request. (See id. at 5-6.) As relief, Sciacca seeks an order directing the FBI to release

the requested documents. (Id. at 7.)

On March 4, 2009, approximately three and a half months after Sciacca filed his

complaint, the FBI produced 281 pages of the records Sciacca had requested, in full or

in part, out of 365 pages it claimed to have reviewed at that point, withholding the

remaining 84 pages in full. (Hardy Decl. ¶ 16.) The FBI asserted various FOIA

exemptions to justify its redactions of the produced documents and its withholding the

remainder of the documents, including Exemption 2, which pertains to matters that are

“related solely to the internal personnel rules and practices of an agency,” 5 U.S.C.

§ 552(b)(2); Exemption 3, which relates to matters that are “specifically exempted from

disclosure by statute,” 5 U.S.C. § 552(b)(3); Exemption 6, which protects “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), and Exemption 7,

which applies to “records or information compiled for law enforcement purposes,”

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5 U.S.C. § 552(b)(7). (Id.) 1 On April 30, 2009, the FBI produced to Sciacca another

141 pages, in full or in part, out of an additional 279 pages it had reviewed, withholding

the remaining 138 pages in full, and invoking the same FOIA exemptions as before to

justify its redactions and withholding. (Id. at ¶ 17).

A. Defendants’ Motion For Summary Judgment And Accompanying

Declaration

On May 4, 2009, Defendants moved for summary judgment on Plaintiff’s claims,

asserting that the productions they had made satisfied any FOIA obligations, and thus

no genuine questions of material fact remained in the case. (See Mem. in Supp. of

Defs.’ Mot. For Summ. J. (“Defs.’ Br.”), ECF No. 12, at 1.) In support of the motion,

Defendants submitted a lengthy declaration from David M. Hardy, the Section Chief of

the Record/Information Dissemination Section, Records Management Division of the

FBI. (Hardy Decl. ¶ 1.)

The Hardy Declaration begins with a summary of the procedural history of

Sciacca’s FOIA request, then explains the organization of the FBI’s central records

system and details the steps taken to search for and review records responsive the

Sciacca’s request. (Id. ¶¶ 7-33.) The Declaration notes that two separate tranches of

records were produced to Hardy—the first comprised of 281 of 365 responsive pages

1

Exemption 7 itself contains six separate subcategories. Defendants invoked three of these in redacting

and withholding information otherwise responsive to Sciacca’s request: Exemption 7(C), which covers

records compiled for law enforcement purposes that “could reasonably be expected to constitute an

unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C); Exemption 7(D), relating records

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); and Exemption 7(E), which applies to records compiled

for law enforcement purposes that “would disclose techniques and procedures for law enforcement

investigations,” 5 U.S.C. § 552(b)(7)(E). (See Hardy Decl. ¶ 40.)

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produced in full or in part; the second comprised of 141 of 279 responsive pages

produced in full or in part. (Id. ¶¶ 16-17.) 2

Next, the Hardy Declaration goes on to explain the coding system used to redact

portions of the pages produced to Sciacca. It notes that each produced page “on its face

contains coded categories of exemptions which detail the nature of the information

withheld,” and that these “coded categories” appear next to the specific information that

has been withheld (that is, redacted). (Id. ¶ 39.) Moreover, in addition to identifying

the type of information redacted, the coded categories displayed on each page also

identify which specific FOIA exemption the information implicates. (Id.) In other

words, each “coded category” appearing next to a specific redaction conveys two pieces

of information to the reader: 1) the type of information redacted; and 2) the specific

FOIA exemption (or exemptions) that justify redacting that type of information. As an

example, the Declaration states that

on Bates Page SCIACCA-2 “Exemption (b)(7)(C)-1” is cited

to protect the names and/or identifying information

concerning FBI Special Agents and Support Employees.

The ‘(b)(7)(C)’ designation refers to Exemption (b)(7)(C) of

the FOIA concerning Unwarranted Invasion of Personal

Privacy. The numerical designation ‘1’ following the

(b)(7)(C) narrows the category of protected information

from the main category to the more specific subcategory of

“FBI Special Agents and Personnel.”

(Id. ¶ 39.)

The Hardy Declaration goes on to list eighteen different types of information

redacted in the records produced to Sciacca. (Id. ¶ 40.) For each of these types of

information, the Declaration lists the corresponding coded category (or, in some cases,

2

While the Hardy Declaration does not so specify, the Court assumes that the difference between the number of

total responsive pages and the number of pages released to Sciacca consists of pages withheld in full.

5

categories) that identifies the specific FOIA exemption that justifies redacting that type

of information wherever it appears in the records produced to Sciacca. (Id. ¶ 40.) For

example, the Declaration identifies “Confidential Source Symbol Numbers,” as having

category code (b)(2)-1. (Id.) Thus, wherever the coded category (b)(2)-1 appears next

to a redaction in the records produced, it indicates to the reader that Defendants have

redacted a Confidential Source File Number because they believe that such numbers are

exempt from disclosure under FOIA Exemption 2.

In some cases, multiple coded categories are listed for a particular type of

information, indicating that Defendants believe that more than one FOIA exemption

authorizes redacting that particular type of information. For example, the entry for

Confidential Source Symbol Numbers not only identifies that type of information as

having coded category (b)(2)-1, but also notes that it is “cited in conjunction with

[coded category] (b)(7)(D)-2,” (id.) which protects information that “could reasonably

be expected to disclose the identity of a confidential source.” 5 U.S.C. § 552(b)(7)(D).

In other words, the categorization system outlined in the Hardy Declaration attempts to

identify each different type of information that was redacted from the records produced

to Sciacca, and also to identify which FOIA exemption or exemptions are applicable to

each of those types of information.

After explaining how Defendants categorized the redactions in the records that

they produced, the Hardy Declaration goes on to explain the justification behind the

redaction of each of the eighteen types of information, including why FOIA Exemptions

2, 3, 6, and/or 7, respectively, justify redacting those types of information. (Hardy

Decl. ¶¶ 42-86.) For example, in discussing Defendants’ decision to redact

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Confidential Source Symbol Numbers pursuant to FOIA Exemptions 2 and 7(D), the

Declaration explains that a “Confidential Source Symbol Number” is an internal FBI

designation used to identify the source of information used in FBI reports, and that

“release of these source symbol numbers would indicate both the scope and location of

FBI informant coverage within a particular geographic area” and could potentially be

used to identify confidential sources. (Id. ¶¶ 44-45.) For each of the eighteen types of

information, the Hardy Declaration provides a similar explanation, and then identifies

the Bates number of each produced page that that type of information appears on—for

example, code category (b)(2)-1 “has been cited on the following pages: SCIACCA-

293, 314, and 317.” (Id. ¶ 45.)

Finally, the Hardy Declaration includes a statement that the pages that were

withheld in full contain no “reasonably segregable” information, such that if they were

redacted and released, all that would actually be produced would be “a patchwork of

unintelligible text.” (Id. ¶ 87.)

In his opposition to Defendants’ motion for summary judgment, Sciacca raises

two issues that he claims should preclude entry of summary judgment in Defendants’

favor. First, Sciacca argues that he is unable to evaluate effectively Defendants’

application of the relevant exemptions because Defendants have not provided an

adequate Vaughn index. Second, Sciacca contends that summary judgment is not

warranted because Defendants acted in bad faith when they initially claimed that they

could find no documents responsive to his FOIA request. (Pl.’s Opp. to Defs.’ Mot. for

Summ. J. (“Pl. Opp.”), ECF No. 23, at 5-7.)

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B. The Magistrate Judge’s Report and Recommendation

On October 11, 2011, the Court referred Defendants’ summary judgment motion

to Magistrate Judge Facciola for a Report and Recommendation regarding the motion.

(See Order Referring Case to Magistrate Judge, ECF No. 28.) On February 16, 2012,

Magistrate Judge Facciola issued such a report, which concluded that the Hardy

Declaration was insufficient as a matter of law to support all of the Defendants’

justifications for the withholding of records, and thus that Defendants’ summary

judgment motion should be denied. (See Report and Recommendation, ECF No. 31, at

3.) Specifically, Magistrate Judge Facciola concluded that the Hardy Declaration had

failed to demonstrate that the pages Defendants had fully withheld contained no

additional reasonably segregable information. (Id.) 3

On March 1, 2012, Defendants filed a timely objection to the Magistrate Judge’s

report. (Defs.’ Objections to the Magistrate Judge’s Report and Recommendation

(“Defs.’ Obj.”), ECF No. 32.) Defendants argued that the Hardy Declaration satisfied

their burden of showing that the records withheld in full were not reasonably segregable

through its statement that any non-exempt information in these records would amount to

merely “a patchwork of unintelligible text.” (Id. at 8.)

II. LEGAL STANDARDS

A. An Agency’s Obligation Under FOIA

FOIA “generally requires the disclosure, upon request, of records held by a

federal government agency[.] ” Judicial Watch, Inc. v. U.S. Dep’t of the Treasury, 796

F. Supp. 2d 13, 18 (D.D.C. 2011). Specifically, FOIA provides in relevant part that

3

The report did not address Sciacca’s arguments about the lack of a Vaughn index or Defendants’ bad

faith.

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[E]ach agency, upon any request for records which (i) reasonably

describes such records and (ii) is made in accordance with published rules

stating the time, place, fees (if any), and procedures to be followed, shall

make the records promptly available to any person.

5 U.S.C. § 552(a)(3)(A). FOIA “was enacted to facilitate public access to Government

documents,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 171 (1991), in order to provide

“a means for citizens to know ‘what their Government is up to.’” Nat’l Archives &

Records Admin. v. Favish, 541 U.S. 157, 171 (2004). However, “[i]n enacting FOIA,

the Congress sought to balance the public’s interest in governmental transparency

against legitimate governmental and private interests [that] could be harmed by release

of certain types of information.” United Tech. Corp. v. U.S. Dep’t of Def., 601 F.3d

557, 559 (D.C. Cir. 2010) (internal quotation marks and citations omitted). To that end,

“Congress included nine exemptions permitting agencies to withhold information from

FOIA disclosure.” Judicial Watch, 796 F. Supp. 2d at 23.

Whenever it invokes one of the nine FOIA exemptions, a government agency

bears the burden of demonstrating that the records requested do in fact qualify for that

exemption. See Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C.

Cir. 2003). Moreover, even if a portion of the records is justifiably withheld pursuant

to one of the enumerated exemptions, “[a]ny reasonably segregable portion of a record

shall be provided to any person requesting such record after deletion of the portions

which are exempt[.]” 5 U.S.C. § 552(b). “The government bears the burden of

demonstrating that no reasonably segregable material exists in the withheld documents”

and “must provide[ ] a detailed justification and not just conclusory statements to

demonstrate that all reasonably segregable information has been released.” Barouch v.

9

DOJ, No. 12-cv-0129, 2013 WL 4494686, at *17 (D.D.C. Aug. 23, 2013) (internal

quotation marks and citations omitted).

“Because of its unique evidentiary configuration, the typical FOIA case ‘distorts

the traditional adversary nature of our legal system’s form of dispute resolution.’”

Judicial Watch, Inc. v. FDA, 449 F.3d 141, 145-46 (D.C. Cir. 2006) (quoting King v.

DOJ, 830 F.2d 210, 218 (D.C. Cir. 1987)). “When a party submits a FOIA request, it

faces an ‘asymmetrical distribution of knowledge’ where the agency alone possesses,

reviews, discloses, and withholds the subject matter of the request.” Id. (quoting King,

830 F.2d at 218). “Accordingly, the FOIA places the burden on the agency to establish

its right to withhold information under one of the enumerated FOIA Exemptions. An

agency may do so through producing a Vaughn index, which is an affidavit that indexes

and specifically describes withheld or redacted documents and explains why each

withheld record is exempt from disclosure.” Schoenman v. FBI, 604 F. Supp. 2d 174,

196 (D.D.C. 2009) (citing King, 830 F.2d at 219). An agency may also rely upon

“sufficiently detailed affidavits or declarations” in discharging its burden under FOIA.

Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 88 (D.D.C. 2009).

B. Summary Judgment In FOIA Cases

“FOIA cases typically and appropriately are decided on motions for summary

judgment.” Defenders of Wildlife, 623 F. Supp. 2d at 87 (citing Bigwood v. U.S.

Agency for Int’l Dev., 484 F. Supp. 2d 68, 74 (D.D.C. 2007)). Under Rule 56 of the

Federal Rules of Civil Procedure, summary judgment must be granted when the

pleadings, the discovery and disclosure materials on file, and any affidavits, “‘show that

there is no genuine issue as to any material fact and that the movant is entitled to a

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judgment as a matter of law.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247

(1986) (quoting Fed. R. Civ. P. 56). In the FOIA context, a district court reviewing a

motion for summary judgment conducts a de novo review of the record, and the

responding federal agency bears the burden of proving that it has complied with its

obligations under the FOIA. 5 U.S.C. § 552(a)(4)(B); see also In Defense of Animals v.

Nat’l Insts. of Health, 543 F. Supp. 2d 83, 92-93 (D.D.C. 2008) (same). The court must

analyze all underlying facts and inferences in the light most favorable to the FOIA

requester. See Wills v. DOJ, 581 F. Supp. 2d 57, 65 (D.D.C. 2008). As such, summary

judgment for an agency is only appropriate after the agency proves that it has “fully

discharged its [FOIA] obligations[.]” Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C.

1996) (citing Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1382 (8th Cir. 1985)).

A court may award summary judgment based solely upon the information

provided in affidavits or declarations when the affidavits or declarations describe “the

justifications for nondisclosure with reasonably specific detail, demonstrate that the

information withheld logically falls within the claimed exemption, and are not

controverted by either contrary evidence in the record nor by evidence of agency bad

faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such

affidavits or declarations “are accorded a presumption of good faith, which cannot be

rebutted by ‘purely speculative claims about the existence and discoverability of other

documents.’” SafeCard Serv., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.1991)

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

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C. Review Of A Magistrate Judge’s Report And Recommendation

“[A] magistrate judge’s report and recommendation is reviewed de novo.” Bode

& Grenier, LLP v. Knight, 821 F. Supp. 2d 57, 60 (D.D.C. 2011) (internal quotation

marks and citation omitted). “The district judge may accept, reject, or modify the

recommended disposition; receive further evidence; or return the matter to the

magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C.

§ 636(b). When objecting to a report and recommendation, “the parties may not present

new issues or arguments to the district judge; rather, only those issues that the parties

have raised in their objections to the Magistrate Judge’s report will be reviewed by this

court.” M.O. v. D.C., No. 11-cv-1695, 2013 WL 5424705 (D.D.C. Sept. 30, 2013)

(internal quotation marks and citation omitted). “And ‘when a party makes conclusory

or general objections, or simply reiterates his original arguments, the Court reviews the

Report and Recommendation only for clear error.’” Id. (quoting Alaimo v. Bd. of Educ.

of the Tri–Valley Cent. Sch. Dist., 650 F. Supp. 2d 289, 291 (S.D.N.Y. 2009).

III. ANALYSIS

Defendants here maintain that they have fully complied with their FOIA

obligations by conducting an adequate search for documents responsive to Sciacca’s

request, by producing all responsive, reasonably segregable records, and through the

Hardy Declaration, by carrying their burden of justifying their withholding or redaction

of certain records. Accordingly, Defendants maintain that there is no remaining issue

of material fact, and therefore that summary judgment should be granted in their favor.

(Defs.’ Br. at 1.)

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In considering the pending motion for summary judgment, the ultimate question

this Court must address is whether Defendants have carried their burden of justifying

the invocation of various FOIA exemptions to redact and withhold documents that

would otherwise be responsive to Sciacca’s FOIA request. Of course, in order for this

Court to make that determination, Defendants must provide sufficient information

regarding the records that were redacted or withheld in their entirety and also

Defendants’ reasons for treating certain responsive records in this fashion; here, this

question of whether or not Defendants here have provided sufficient information about

their withholdings is the crux of the current dispute. Magistrate Judge Facciola

concluded that the Hardy Declaration does not provide adequate support for

Defendants’ arguments regarding segregability. Moreover, Sciacca maintains that

Defendants have not provided a sufficient Vaughn index as a matter of law, and that

Defendants acted in bad faith such that the Hardy Declaration—which has been offered

as evidence regarding how the agency discharged its FOIA obligations—should not be

accorded a presumption of good faith. For the reasons explained below, this Court

concludes that Defendants have fallen short of their duty to provide adequate

information regarding the redactions and withholdings, and that, without more

information, this Court cannot evaluate whether Defendants have properly employed the

various exemptions pursuant to which Defendants redacted and withheld the documents

in question.

A. Defendants Have Failed To Provide Adequate Support For Their

Conclusory Statement Regarding Segregability

“If a record contains information that is exempt from disclosure, any reasonably

segregable information must be released after deleting the exempt portions, unless the

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non-exempt portions are inextricably intertwined with exempt portions.” Salas v.

Office of Inspector Gen., 577 F. Supp. 2d 105, 112 (D.D.C. 2008) (citing Trans-Pac.

Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022 (D.C. Cir. 1999)). In order to

justify withholding an entire record on the grounds that any non-exempt information is

“inextricably intertwined” with exempt information, an agency “‘must demonstrate [to

the Court] that it cannot segregate the exempt material from the non-exempt and must

disclose as much as possible.’” Defenders of Wildlife, 623 F. Supp. 2d at 90 (quoting

Hertzberg v. Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003)). Indeed, “[b]efore

approving the application of a FOIA exemption, the district court must make specific

findings of segregability regarding the documents to be withheld.” Sussman v. U.S.

Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007). And while “[a]gencies are

entitled to a presumption that they complied with the obligation to disclose reasonably

segregable material,” id. at 1117, “a blanket declaration that all facts are so intertwined

to prevent disclosure under the FOIA does not constitute a sufficient explanation of

non-segregability. . . . rather, for each entry the defendant is required to specify in

detail which portions of the document are disclosable and which are allegedly exempt.”

Wilderness Soc’y v. Dep’t of Interior, 344 F. Supp. 2d 1, 19 (D.D.C. 2004) (emphasis in

original) (internal quotation marks and citations omitted).

As noted above, Magistrate Judge Facciola’s Report and Recommendation found

that Defendants had failed to carry their burden of showing the documents withheld in

full contained no reasonably segregable information. The Report and Recommendation

specifically takes issue with paragraphs 87 and 88 of the Hardy Declaration, which

provide in relevant part:

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(87) After extensive review of the documents at issue, it has

been determined that there is no further reasonably

segregable information which may be released. The fully

withheld documents are not segregable in that the extensive

redactions would only cause a patchwork of unintelligible

text. Thus, the FBI should not be required to segregate these

words and phrases from disclosure.

***

(88) The FBI has processed and released all reasonably

segregable information from the records responsive to

plaintiff’s request to the FBI.

(See Report and Recommendation at 2-3.) Magistrate Judge Facciola found that these

statements were inadequate as a matter of law to meet the standard articulated above.

In their objection to the magistrate judge’s Report and Recommendation,

Defendants point out that the focus of FOIA is on the substance of the documents

subject to a request rather than the individual words, and thus they are not required to

disclose documents where extensive redactions would cause only “a patchwork of

unintelligible text” to be produced. (Defs.’ Obj. at 4-6.) Defendants also attempt to

distinguish the cases Magistrate Judge Facciola relied upon in his report, arguing that

those cases did not address situations involving the production of heavily redacted

documents. (Id. at 6-7.) Defendants argue that, because of these factors, they should

not be required to expend the effort to redact and produce the withheld documents. (Id.

at 7-8.)

Defendants are correct in their recitation of the prevailing legal standard, but

miss the point of Magistrate Judge Facciola’s recommendation. While it is true that

Defendants need not produce documents where redactions would cause them to have

“minimal or no information content,” Mead Data Cent., Inc. v. Dep’t of the Air Force,

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566 F.2d 242, 261 n. 55 (D.C. Cir. 1977), Defendants must do more than simply state

that they withheld documents for this reason. Rather, they must give the Court some

basis on which to evaluate their claim that no reasonably segregable information exists

in those documents. Thus, the question at this point is not whether the withheld

documents satisfy the stated exemption, but whether the Hardy Declaration contains

enough information for the Court to assess—and potentially to concur with—

Defendants’ conclusion that there is no reasonably segregable information in those

documents. See, e.g., Wilderness Soc’y, 344 F. Supp. 2d at 18 (“[T]he segregability

question turns on whether the agency has sufficiently explained why there was no

reasonable means of segregating factual material from the claimed privileged

material.”)

Here, while the Hardy Declaration is lengthy, and provides a reasonably detailed

description of the various types of exemptions that Defendants maintain are applicable

to Sciacca’s documents, it does not provide any information on the segregability of the

documents that were entirely withheld. Indeed, the entire discussion of segregability in

the 42-page Declaration amounts to (1) the conclusory statements cited above; and (2)

an equally conclusory statement that “[e]very effort was made to provide plaintiff with

all reasonably segregable portions of releasable material.” (Hardy Decl. ¶ 37.) These

are quintessentially the type of “blanket declarations” that do not suffice to carry an

agency’s burden of showing that certain documents may be withheld in full. Wilderness

Soc’y, 344 F. Supp. 2d at 19. Indeed, based on the information Defendants have thus

far provided, this Court cannot even ascertain which documents the FBI has entirely

withheld, as opposed to those it has produced with redactions. Defendants have clearly

16

failed to provide this Court with sufficient information for it to make the required

“specific findings of segregability regarding the documents to be withheld.” Sussman,

494 F.3d at 1116. Consequently, the Court will adopt the magistrate judge’s reasoning

and conclusion regarding segregability, and will deny Defendants’ motion for summary

judgment partly on this ground.

B. Defendants Have Not Provided A Detailed Description Of The Documents

Produced And The Information Withheld

Additionally, despite the complex system that Defendants used to label and

identify various pages of their response to Sciacca’s FOIA request, Defendants have

missed the mark with respect to a much more fundamental task: their duty to provide a

straightforward listing of the documents and information that have been withheld

pursuant to a FOIA exemption. As noted above, because of the information

asymmetries inherent in the FOIA system, the agency bears the burden of justifying any

withholding of otherwise responsive information. See, e.g., Bigwood, 484 F. Supp. 2d

at 74. “To enable the Court to determine whether documents properly were withheld,

the agency must provide a detailed description of the information withheld through the

submission of a so-called ‘Vaughn Index,’ sufficiently detailed affidavits or

declarations, or both.” Defenders of Wildlife, 623 F. Supp. 2d at 88; see also Oglesby v.

Dep’t of the Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996); Vaughn v. Rosen, 484 F.2d

820, 827-28 (D.C. Cir. 1973). The Vaughn Index and/or accompanying affidavits or

declarations must “provide[ ] a relatively detailed justification, specifically identif[y]

the reasons why a particular exemption is relevant and correlat[e] those claims with the

particular part of a withheld document to which they apply.” Judicial Watch v. FDA,

449 F.3d at 146 (quoting Mead Data, 566 F.2d at 251). While there is no set form for

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these submissions, the agency should “‘disclose as much information as possible

without thwarting the exemption’s purpose.’” Hall v. DOJ, 552 F. Supp. 2d 23, 27

(D.D.C. 2008) (quoting King, 830 F.2d at 224).

In this case, Defendants rely exclusively on the Hardy Declaration to justify their

redaction and withholding of various documents that apparently would otherwise be

responsive to Sciacca’s FOIA request. But the Hardy Declaration is manifestly

insufficient as a matter of law to allow the Court to assess the applicability of the FOIA

exemptions it discusses and thereby grant summary judgment in Defendants’ favor.

First, and most important, neither the Declaration itself nor Defendants’

summary judgment papers bother even to list or describe the responsive documents at

issue. In the Hardy Declaration and elsewhere in their papers, Defendants refer only to

the “pages” that they have produced, redacted, or withheld, and identify such pages

only by Bates number. (See, e.g., Defs.’ Br. at 6-7; Hardy Decl. ¶¶ 45, 48, 50, 52.)

Nowhere do Defendants explain what types of documents these pages belong to, who

created the documents and for what purpose, and how the exemptions relate to the

nature of the documents themselves. Nor do Defendants identify whether the “pages”

are part of stand-alone, single-page documents, or comprise parts of various multi-page

documents that Defendants identified as responsive to Sciacca’s document request.

Similarly, although all parties acknowledge that Defendants redacted some of the

responsive documents while withholding others completely, neither the Hardy

Declaration nor Defendants’ summary judgment brief provides any information about

which specific documents fall into which category (produced in full, redacted, or

withheld) and why.

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Such information is unquestionably necessary “to enable the court and the

opposing party to understand the withheld information in order to address the merits of

the claimed exemptions,” Judicial Watch v. FDA, 449 F.3d at 150, and without this type

of information, it is simply impossible for the Court to determine whether the

exemptions were properly applied. As a hypothetical example, unless the agency

represents that a certain withheld document spanning pages Bates numbered SCIACCA-

001-008 was a report from an FBI Special Agent created on a particular date concerning

information provided by a confidential source (as opposed to, say, a news story

reporting on issues related to Sciacca’s prosecution), the Court cannot properly evaluate

whether and to what extent a claimed exemption applies to that document. And having

not provided basic document-identifying information regarding the production in this

case, Defendants have failed to meet their obligation to “disclose as much information

as possible without thwarting the exemption’s purpose.” Hall, 552 F. Supp. 2d at 27.

In short, the Hardy Declaration seems to put the cart before the horse insofar as

it elaborately identifies Defendants’ asserted exemptions, but neglects to provide an

overall picture of the universe of documents at issue as is necessary for the Court to be

able to put those exemption justifications in the proper context. Given the specifics of

this case, an adequate affidavit, declaration, or Vaughn index will include a description

of each document (and, wherever possible, the date created and reason for its creation);

the Bates ranges associated with each document; and the exemptions that arguably

apply to each document, along with the reasons for the asserted exemption. Notably,

because there are only 600 “pages” at issue in this case—and presumably far fewer

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documents— providing adequate supporting documentation in the manner described

should not place an undue burden on Defendants. 4

C. Defendants Did Not Act In Bad Faith

Finally, the Court turns to Sciacca’s contention, made in his opposition to

Defendants’ motion for summary judgment, that the FBI acted in bad faith in regard to

its initial response to his FOIA request and thus the Hardy Declaration should be

discredited. Sciacca points to the fact that the FBI initially denied that the agency had

any responsive documents, and then, (in Sciacca’s words) the agency “mysteriously

‘found’ his ‘responsive’ materials.” (Pl. Opp. at 6.)

Although evidence of bad faith can be used to rebut the “presumption of good

faith” that otherwise attaches to affidavits or declarations submitted in support of a

FOIA summary judgment motion, SafeCard Serv., Inc., 926 F.2d at 1200; see also

Moore, 916 F. Supp. at 35-36, it is not enough for a plaintiff “to make purely

speculative claims about the existence and discoverability of other documents.” Justice

v. IRS, 798 F. Supp. 2d 43, 46 (D.D.C. 2011) (internal quotation marks and citation

omitted). Here, even if the fact that the FBI initially claimed that it could not locate

any records responsive to Sciacca’s request evidenced bad faith—and this Court is not

convinced that it does— this evidence relates only to the FBI’s efforts regarding the

adequacy of its search for responsive documents, and Sciacca has expressly disavowed

any challenge to the adequacy of the FBI’s search. (See Pl. Opp. at 7 (“Plaintiff would

4

To be clear, to the extent that the rationale for the redaction or withholding related to each of the

“code categories” in the Hardy declaration is consistent across documents, Defendants may refer back

to such rationale and need not repeat it with respect to each category applied to each document listed in

the expanded Vaughn index. What Defendants need to do—and what they have thus far failed to do—is

provide enough information about the documents themselves so that the Court can understand why a

particular code category is relevant to a particular document.

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also state that the dispute is not that there was insufficient search of the FBI’s files of

that the searches that were done were inadequate; but that the FBI is incorrectly

withholding and redacting materials that are responsive to the request and releasable to

Plaintiff.”).) Sciacca makes no allegations regarding bad faith with respect to the

withholding of responsive information, which, by Sciacca’s own admission, is the only

issue before the Court. Accordingly, the Court finds that there is no evidence that the

FBI acted in bad faith in withholding or redacting documents responsive to Sciacca’s

request.

IV. CONCLUSION

For the reasons discussed above, the Court finds that Defendants have not

provided sufficient information to permit an assessment of whether they have produced

all reasonably segregable information, and have also failed to submit a sufficiently

detailed affidavit, declaration, or Vaughn index in support of Defendants’ contention

that they have satisfied their FOIA obligations. Accordingly, Defendants’ motion for

summary judgment is DENIED without prejudice. Once they have provided

supplemental declarations, or a Vaughn index, in a manner consistent with this opinion

and the accompanying order, Defendants may renew their motion.

DATE: March 6, 2014 Ketanji Brown Jackson

KETANJI BROWN JACKSON

United States District Judge

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