Petition for Writ of Certiorari — Barbara Kowal, Petitioner v. Department of Justice, et al.

Supreme Court briefJan 7, 2025

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No. ______

IN THE SUPREME COURT OF THE UNITED STATES

═════════════════════════════════

BARBARA KOWAL,

Petitioner,

UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,

Respondents.

═════════════════════════════════

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

═════════════════════════════════

APPENDIX

═════════════════════════════════

LEOR VELEANU

Counsel of Record

Member, Supreme Court Bar

Office of the Federal Defender

Middle District of Florida

400 N Tampa Street, Suite 2700

Tampa. FL 33602

(813) 228-2715

Leor_Veleanu@fd.org

Counsel for Petitioner Barbara Kowal

INDEX OF APPENDICES

APPENDIX 1:

Opinion of the United States Court of Appeals for

the District of Columbia (July 16, 2024)..................................... a1

APPENDIX 2:

Memorandum Opinion of the United States District Court

for the District of Columbia (September 30, 2021) .................... a8

APPENDIX 3:

Memorandum Opinion of the United States District Court

for the District of Columbia (June 27, 2022) ............................ a22

APPENDIX 4:

Order of the United States Court of Appeals for

the District of Columbia Denying Rehearing En Banc

(September 17, 2024) ................................................................. a29

APPENDIX 5:

Order of the United States Court of Appeals for

the District of Columbia Denying Panel Rehearing

(September 17, 2024) ................................................................. a30

APPENDIX 6:

Statutory provisions .................................................................. a31

APPENDIX 7:

Petitioner’s Petition for Panel Rehearing & Rehearing

En Banc (August 30, 2024)........................................................ a32

APPENDIX 8:

Petitioner’s Motion to Alter or Amend (October 27, 2021)....... a58

Kowal v. United States Department of Justice, 107 F.4th 1018 (2024)

107 F.4th 1018

United States Court of Appeals,

District of Columbia Circuit.

Barbara KOWAL, Appellant

UNITED STATES DEPARTMENT

OF JUSTICE, et al., Appellees

Barbara Kowal, Appellant

United States Department of Justice and Drug

Enforcement Administration, Freedom of

Information Request/PA Unit, Appelleess

No. 22-5231, No. 22-5287

Argued January 23, 2024

Decided July 16, 2024

Synopsis

Background: Requester, a paralegal for federal public

defender representing criminal defendant, filed two suits

against Department of Justice and its components, with

one suit primarily against FBI and Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF) and other against

Drug Enforcement Administration (DEA), to which she had

submitted Freedom of Information Act (FOIA) requests,

alleging agencies failed to make adequate searches and

wrongfully withheld records. The United States District Court

for the District of Columbia, Timothy J. Kelly, J., 2022 WL

2315535 and 2022 WL 4016582, granted summary judgment

for agencies. Requester appealed.

Holdings: The Court of Appeals, Rao, Circuit Judge, held

that:

agencies' document searches in response to FOIA request

were reasonable in light of particular requests;

FBI and ATF accurately construed search requests;

it was reasonable for agencies not to search for defendant's

alias;

Appendix 1

public domain doctrine did not defeat FBI's withholding

of summary of wiretap conversation pursuant to exemption

applicable to records specifically exempted from disclosure

by statute;

agencies' explanations for decision to redact names and other

identifying information, pursuant to exemption protecting

from disclosure records or information compiled for law

enforcement purposes that could reasonably be expected to

constitute unwarranted invasion of personal privacy, were

sufficient to demonstrate disclosure would threaten privacy

interests;

FOIA exemption that protected from disclosure information

that could reasonably be expected to disclose identity of

confidential source or information furnished by confidential

source applied; and

FOIA exemption that allowed agencies to withhold records

when release would disclose techniques and procedures for

law enforcement investigations or prosecutions or would

disclose guidelines if such disclosure could reasonably be

expected to risk circumvention of law applied.

Affirmed.

Procedural Posture(s): On Appeal; Review of

Administrative Decision; Motion for Summary Judgment.

*1025 Appeal from the United States District Court for the

District of Columbia (Nos. 1:18-cv-02798, 1:18-cv-00938)

Attorneys and Law Firms

Matthew E. Kelley argued the cause for appellant. On the

briefs was D. Todd Doss, Assistant Federal Defender, for

22-5231 and 22-5287.

Jeremy S. Simon, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Brian P. Hudak and

Jane M. Lyons, Assistant U.S. Attorneys.

Jeremy S. Simon, Assistant U.S. Attorney, argued the cause

for appellees. With him on the brief were Brian P. Hudak and

Jane M. Lyons, Assistant U.S. Attorneys. Douglas C. Dreier,

Assistant U.S. Attorney, entered an appearance.

Before: Henderson, Pillard, and Rao, Circuit Judges.

a11

Kowal v. United States Department of Justice, 107 F.4th 1018 (2024)

agencies explained that they withheld information pursuant

to FOIA Exemptions 3, 6, 7(C), 7(D), 7(E), and 7(F). See 5

U.S.C. § 552(b)(3), (6), (7)(C)–(F).

Opinion

Rao, Circuit Judge:

*1026 Barbara Kowal filed Freedom of Information Act

(“FOIA”) requests with several law enforcement agencies.

Unsatisfied by the agencies’ disclosures, Kowal brought two

suits claiming that the agencies failed to make adequate

searches and that they wrongfully withheld records. The

district court granted summary judgment for the agencies in

both cases. We affirm because the searches were adequate and

the records were exempted from disclosure under FOIA.

Kowal is a paralegal for a federal public defender representing

Daniel Troya. Troya was sentenced to death for the

“gangland-style” murder of a family of four on a highway

roadside. See United States v. Troya, 733 F.3d 1125, 1136–

37 (11th Cir. 2013). The murder was committed “to protect

a large-scale drug trafficking ring involving drugs, guns and

extensive violence.” Id. at 1129. In his habeas proceedings,

Troya asserted the government failed to disclose exculpatory

material at his trial.

Seeking evidence to support Troya's claim, Kowal submitted

identical FOIA requests to the Bureau of Alcohol, Tobacco,

Firearms and Explosives (“ATF”), the Federal Bureau

of Investigation (“FBI”), and the Drug Enforcement

Administration (“DEA”), asking for “all documents,

files, records, etc. pertaining to any investigation, arrest,

indictment, conviction, sentencing, incarceration, and/or

parole of ... Daniel Troya (a/k/a ‘Homer’).” Kowal's requests

included Troya's date of birth and information identifying his

federal charges and criminal proceedings.

In response to Kowal's request, the agencies searched for

responsive records. The DEA searched its centralized records

system using Troya's name and date of birth and identified

418 responsive pages. The DEA produced 14 pages in full,

133 in part, and withheld 271. The ATF searched two of its

internal records systems, using the keyword “Daniel Troya,”

and identified 480 responsive pages. The ATF produced

63 pages in full, 223 in part, and withheld 194. The FBI

searched its Central Records System using the terms “Daniel

Anthony Troya” and “Homer Troya.” The FBI identified

275 responsive pages, produced 134 pages (with some

redactions), and withheld 141. In their Vaughn indices, 1 the

When relying on a FOIA exemption to withhold

records, an agency must “provide a relatively

detailed justification, specifically identifying the

reasons why a particular exemption is relevant and

correlating those claims with the particular part of

a withheld document to which they apply.” Mead

Data Cent., Inc. v. Dep't of Air Force, 566 F.2d 242,

251 (D.C. Cir. 1977); see also Vaughn v. Rosen, 484

F.2d 820, 827 (D.C. Cir. 1973).

Dissatisfied with the responses, Kowal challenged the

adequacy of the agencies’ searches and alleged the agencies

impermissibly withheld documents. After she exhausted her

administrative remedies, Kowal filed two suits in federal

court against components of the Department of Justice: one

primarily against the FBI and the ATF, and another against

the DEA. The district court granted summary judgment to the

agencies. See Kowal v. Dep't of Justice, 2022 WL 2315535

(D.D.C. June 27, 2022); Kowal v. Dep't of Justice, 2022 WL

4016582 (D.D.C. Sept. 2, 2022). Kowal timely appealed.

Because the legal and factual issues substantially overlap, we

decide both appeals in a single opinion.

II.

FOIA requires federal agencies, when requested, to disclose

certain agency *1027 records unless an exemption applies.

Pub. L. No. 89-487, 80 Stat. 250 (1966) (codified as amended

at 5 U.S.C. §§ 552–59). Kowal challenges both the adequacy

of the agencies’ searches and their withholding of some

records. We review the district court's grants of summary

judgment de novo.

Kowal first challenges the adequacy of the searches made

by the FBI, ATF, and DEA. An agency must demonstrate it

“made a good faith effort to conduct a search for the requested

records, using methods which can be reasonably expected to

produce the information requested.” Watkins Law & Advoc.,

PLLC v. Dep't of Justice, 78 F.4th 436, 442 (D.C. Cir. 2023)

(cleaned up). The adequacy of a search is “determined not

by the fruits of the search, but by the appropriateness of

a22

Kowal v. United States Department of Justice, 107 F.4th 1018 (2024)

the methods used to carry out the search.” Ancient Coin

Collectors Guild v. Dep't of State, 641 F.3d 504, 514 (D.C. Cir.

2011) (cleaned up). We consider whether the agency's search

was reasonable based on the specific information requested

and the agency's efforts to produce that information.

To facilitate judicial review, an agency usually provides an

“affidavit, setting forth the search terms and the type of

search performed, and averring that all files likely to contain

responsive materials ... were searched.” Oglesby v. Dep't of

Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “Agency affidavits

are accorded a presumption of good faith,” and we will not

credit “[m]ere speculation that ... uncovered documents may

exist” as a basis for finding an agency's search inadequate.

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200–01 (D.C.

Cir. 1991).

Kowal first argues she presented evidence the FBI, ATF, and

DEA overlooked responsive records. Kowal possesses over

200 multimedia items from Troya's trial, some of which, for

instance, explicitly mention the DEA in the file name. The

agencies did not disclose these records in response to her

FOIA request. Kowal maintains these omissions are sufficient

evidence to preclude summary judgment because she has

raised a factual dispute about the adequacy of the agencies’

searches.

We disagree. At best, Kowal has established the agencies may

have missed some records in their searches. But a “reasonable

and thorough search” may still miss records. Iturralde v.

Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003);

see also Nation Magazine v. U.S. Customs Serv., 71 F.3d 885,

892 n.7 (D.C. Cir. 1995) (“[T]here is no requirement that an

agency produce all responsive documents.”). Agencies are

not required “to examine virtually every document in [their]

files” or “follow[ ] an interminable trail of cross-referenced

documents.” Steinberg v. Dep't of Justice, 23 F.3d 548, 552

(D.C. Cir. 1994). We focus on the process, not the results,

when determining the adequacy of a FOIA search. See, e.g.,

Safecard, 926 F.2d at 1201.

We hold the agencies’ searches were reasonable in light

of Kowal's particular requests. In identical requests to the

FBI, ATF, and DEA, Kowal asked for “all ... records ...

pertaining to any investigation, arrest, indictment, conviction,

sentencing, incarceration, and/or parole” of Troya. Kowal

specified Troya's criminal proceeding and federal charges

and represented that she was requesting the information for

Troya's habeas proceedings. The framing of Kowal's requests

directed the agencies toward their criminal investigation

*1028 databases. The FBI searched its Central Records

System, which “spans the entire FBI organization and

encompasses the records of FBI Headquarters ... , FBI

Field Offices, and FBI Legal Attaché Offices ... worldwide.”

The ATF similarly searched its N-Force database and

Treasury Enforcement Communications System, which are

“the two systems of records where ATF records of

criminal investigations are housed.” The DEA searched its

Investigative Reporting and Filing System, which included

a “worldwide search for DEA records, including records

maintained at field offices.”

Troya was a criminal defendant, and Kowal sought materials

about his criminal investigation. The FBI, ATF, and DEA

each searched their criminal investigation databases based on

Kowal's specific records request. They were not required to do

more. “The agency is not required to speculate about potential

leads.” Kowalczyk v. Dep't of Justice, 73 F.3d 386, 389 (D.C.

Cir. 1996) (cleaned up).

Moreover, Kowal contends the agencies’ searches were

inadequate because they failed to uncover additional trial

records in her possession that she surmises the agencies

should have produced. But given that entities not subject

to these FOIA requests—including local law enforcement

and the U.S. Attorney's office in Florida—were involved in

investigating and trying Troya, Kowal has not supported her

inference. Our review of the record and the omitted materials

does not “raise[ ] substantial doubt” about the reasonableness

of the searches. Valencia–Lucena v. U.S. Coast Guard, 180

F.3d 321, 326 (D.C. Cir. 1999) (cleaned up). If Kowal believes

the agencies failed to turn over specific records from Troya's

trial and wants the agencies to pursue records related to her

trial exhibits, she can submit a second, more specific FOIA

request. See Kowalczyk, 73 F.3d at 389. But she fails to

demonstrate the agencies’ searches were inadequate.

Second, Kowal challenges the scope of the agencies’

searches, asserting that the agencies narrowly construed her

requests, failed to use all relevant keywords, and failed to

search all appropriate databases.

a33

Kowal v. United States Department of Justice, 107 F.4th 1018 (2024)

Kowal first contends the FBI and ATF failed to construe

her search requests accurately, both by not searching for

all records mentioning Troya and by improperly limiting

searches to only certain records systems. 2 Yet Kowal

specifically requested records pertaining to the federal

criminal investigation and prosecution of Troya and detailed

his federal charges and criminal proceedings in the subject

line of her request.

Kowal does not appeal the district court's

conclusion that the DEA properly searched its

databases.

As explained in the previous section, the FBI and ATF

properly explained that they searched all relevant databases

for investigation files related to the criminal matter Kowal

referenced in her FOIA request. The ATF explained it

construed Kowal's request as one for “records of ATF's role

in the federal criminal investigation of Daniel Troya” and

accordingly searched its only two databases with records

on criminal investigations. For similar reasons, the FBI

clarified it did not need to search beyond its Central Records

System because any information related to Troya's criminal

prosecution would be indexed there.

Agencies have the discretion to construe requests reasonably

and conduct flexible and targeted searches within their

internal records systems. Agencies do not *1029 need to

honor unreasonably burdensome requests, boiling the ocean

in search of responsive records. See, e.g., Nation Magazine,

71 F.3d at 891–92.

Kowal does not rebut the agency affidavits or provide any

“evidence of agency bad faith.” See Halperin v. CIA, 629

F.2d 144, 148 (D.C. Cir. 1980). Rather, she only speculates

that the FBI and ATF possess other records about Troya.

But “[m]ere speculation” is insufficient to demonstrate the

agencies’ searches were inadequate. See Safecard, 926 F.2d

at 1201.

Second, Kowal maintains the FBI, ATF, and DEA did not

conduct adequate searches because they failed to search

for records mentioning Troya's alias or to search using

phonetic variations of Troya's name. Agencies have flexibility

when searching for responsive records and so may conduct

phonetic or alias searches when these searches are likely

to produce additional, responsive records. Such variant

searches, however, are not always required. Maynard v. CIA,

986 F.2d 547, 560 (1st Cir. 1993). We review only whether

the methods used “can be reasonably expected to produce the

information requested,” Oglesby, 920 F.2d at 68, and whether

the agency's search was “tailored to the nature” of the FOIA

request, Campbell v. Dep't of Justice, 164 F.3d 20, 28 (D.C.

Cir. 1998).

Given the parameters of Kowal's request and because the

agencies located Troya's criminal investigation files, it was

reasonable for them not to search using Troya's alias. Kowal

only requested records “pertaining to any investigation,

arrest, indictment, conviction, sentencing, incarceration, and/

or parole of Daniel Troya.” The DEA explained that it

maintains records related to criminal investigations in its

Investigative Reporting and Filing System, which is indexed

by name and date of birth. The DEA searched the system and

found five criminal investigative files for Troya. Because the

DEA located the files mentioned in Kowal's request, there was

no need to separately search for additional records indexed

under Troya's alias. Similarly, the ATF and FBI also detailed

how they maintain criminal and investigatory files indexed

by name, social security number, or date of birth, and found

responsive investigative files concerning Troya's prosecution

with searches tailored for their databases. Any mention of the

alias “Homer” that Kowal believes could be found through an

alternative search is not responsive to her request for records

related to the investigation and trial “of Daniel Troya.” Nor is

it “obvious” that Troya would be referenced only by his alias

in any agency database. See Am. Oversight v. Dep't of Health

& Hum. Servs., 101 F.4th 909, 923–24 (D.C. Cir. 2024). Once

the agencies found their criminal investigative files pertaining

to Troya's capital case, it was reasonable not to search further.

Kowal merely speculates the agencies possess additional

records in which Troya was identified only by his street name.

But that is insufficient to demonstrate the agencies’ searches

were unreasonable or performed in bad faith.

***

In sum, the FBI, ATF, and DEA followed Kowal's specific

requests to locate records relevant to Troya's criminal case

and demonstrated that their search methods were reasonable.

Kowal also challenges the agencies’ reliance on FOIA

Exemptions 3, 6, 7(C), 7(D), and 7(E) to withhold records. 3

Agencies may demonstrate the applicability *1030 of an

a44

Kowal v. United States Department of Justice, 107 F.4th 1018 (2024)

exemption by affidavit. And “an agency's justification for

invoking a FOIA exemption is sufficient if it appears ‘logical’

or ‘plausible.’ ” Judicial Watch, Inc. v. Dep't of Defense, 715

F.3d 937, 941 (D.C. Cir. 2013) (per curiam) (cleaned up). We

hold the agencies were justified in withholding certain records

under these exemptions.

The FBI and DEA also withheld records pursuant

to FOIA Exemption 7(F), 5 U.S.C. § 552(b)(7)(F).

The district court did not rule on the applicability of

this exemption because all records withheld under

7(F) were also withheld under 7(C). We agree the

records are exempt under Exemption 7(C), so it is

unnecessary to determine whether Exemption 7(F)

also justifies withholding these records.

Exemption 3 protects records “specifically exempted from

disclosure by statute.” 5 U.S.C. § 552(b)(3). The FBI invoked

this exemption to withhold a narrative summary of a wiretap

conversation, as required by the Wiretap Act, 18 U.S.C. §§

2510–12. Kowal does not dispute the record is subject to

Exemption 3's protections. She claims instead that the record

should be released under the public domain doctrine because

it summarizes wiretaps introduced at Troya's trial.

The public domain doctrine provides that “materials normally

immunized from disclosure under FOIA lose their protective

cloak once disclosed and preserved in a permanent public

record.” Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999).

But this exception is “narrow” and entitles “the requester

[to] receive no more than what is publicly available.” See

id. at 553–55. Courts are forbidden “from prying loose from

the government even the smallest bit of information that is

properly” withheld. Afshar v. Dep't of State, 702 F.2d 1125,

1130 (D.C. Cir. 1983).

Kowal alleges only that the wiretapped conversations were

made public at Troya's trial, not that the FBI's narrative

summary of those conversations was made public. An

agency's summary is not the same as the conversation itself.

Kowal has not shown “there is a permanent public record of

the exact” record she seeks. Davis v. Dep't of Justice, 968 F.2d

1276, 1280 (D.C. Cir. 1992). The public domain doctrine does

not defeat the FBI's withholding under Exemption 3.

The FBI, ATF, and DEA invoked FOIA Exemptions 6 and

7(C) to withhold the names and other identifying information,

including addresses and phone numbers, of witnesses and

law enforcement personnel involved in Troya's investigation.

FOIA Exemption 6 protects “personnel ... and similar files the

disclosure of which would constitute a clearly unwarranted

invasion of personal privacy.” 5 U.S.C. § 552(b)(6). FOIA

Exemption 7(C) protects “records or information compiled

for law enforcement purposes ... [that] could reasonably be

expected to constitute an unwarranted invasion of personal

privacy.” Id. § 552(b)(7)(C). When, as here, the request

is for records compiled for law enforcement purposes, the

information protected by Exemption 6 is a subset of that

protected by Exemption 7(C), so we need only analyze the

latter. Roth v. Dep't of Justice, 642 F.3d 1161, 1173 (D.C. Cir.

2011).

When reviewing an agency's reliance on Exemption 7(C),

we “must balance the privacy interests involved against the

public interest in disclosure.” SafeCard, 926 F.2d at 1205.

There must be “substantial probability that the disclosure

[of information] will lead to the threatened invasion [of

privacy].” Nat'l Ass'n of Retired Fed. Emps. v. Horner, 879

F.2d 873, 878 (D.C. Cir. 1989). We “apply a more deferential

attitude toward the claims of *1031 ‘law enforcement

purpose’ made by a criminal law enforcement agency”

because “inadvertent disclosure of criminal investigations,

information sources, or enforcement techniques might cause

serious harm to the legitimate interests of law enforcement

agencies.” Pratt v. Webster, 673 F.2d 408, 418 (D.C. Cir.

1982).

Kowal argues that the agencies failed to justify their

withholdings. We disagree. The FBI, ATF, and DEA

explained that they redacted names and other personal

information, such as telephone numbers, addresses,

and confidential source numbers, to prevent “possible

harassment” or “derogatory inferences and suspicion” against

the personnel and witnesses for their involvement in a gang

murder investigation. These explanations are sufficient to

demonstrate that the disclosure of the withheld information

would threaten privacy interests. Schrecker v. Dep't of Justice,

349 F.3d 657, 666 (D.C. Cir. 2003).

Moreover, Kowal fails to establish any cognizable public

interest in disclosure. There is no public interest in disclosure

a55

Kowal v. United States Department of Justice, 107 F.4th 1018 (2024)

“unless there is compelling evidence that the agency denying

the FOIA request is engaged in illegal activity, and access

to the [requested information] ... is necessary in order to

confirm or refute that evidence.” Safecard, 926 F.2d at 1205–

06. Kowal provides no evidence of agency misconduct.

Instead, she merely speculates that the government may have

exculpatory evidence in Troya's capital case and that this

implicates the public interest. Our caselaw is clear that “the

requester must establish more than a bare suspicion in order

to obtain disclosure.” CREW v. Dep't of Justice, 746 F.3d

1082, 1094 (D.C. Cir. 2014) (cleaned up); see also Roth, 642

F.3d at 1178 (same). Where there is no identifiable public

interest, the privacy interest protected by Exemption 7(C)

prevails because “something, even a modest privacy interest,

outweighs nothing every time.” Horner, 879 F.2d at 879.

Kowal also argues the public domain doctrine should

overcome the agencies’ reliance on Exemption 7(C) for

some withheld trial records and witness names. Although

she provided the district court with a list of testifying

witnesses and transcripts of their testimony, these trial records

demonstrate only that those specific witnesses testified

at trial. The records do not link witnesses to particular

documents or to the information provided by that source.

Because the specific information Kowal seeks has not been

publicly disclosed, she cannot benefit from the public domain

doctrine. See Afshar, 702 F.2d at 1130.

Kowal also specifically challenges the FBI's withholding of

a testifying witness's plea agreement because the agreement

was admitted into evidence at trial and discussed in open

court. Trial records are generally considered public; however,

to satisfy the public domain doctrine, they must be “preserved

in a permanent public record.” Cottone, 193 F.3d at 554.

Records are no longer public when “destroyed, placed under

seal, or otherwise removed from the public domain.” Id.

at 556. And our circuit has cast doubt on the proposition

that “practically obscure” material remains public. Davis,

968 F.2d at 1279 (cleaned up). Here, the FBI has provided

evidence that Troya's trial records, including the specified

plea agreement, were not filed with the court and preserved.

Because these records are not accessible on the public or

electronic docket, the plea agreement does not fit within the

public domain doctrine.

We hold that the FBI, ATF, and DEA properly justified their

withholding of records under Exemption 7(C).

*1032 3.

The FBI and DEA also relied on Exemption 7(D) to withhold

information that “could reasonably be expected to disclose the

identity of a confidential source ... [or] information furnished

by a confidential source.” 5 U.S.C. § 552(b)(7)(D). Kowal

argues this exemption is inapplicable because the agencies

failed to demonstrate that each source testified with an

assurance of confidentiality and provided no “particularized

findings for each source.”

A source is “confidential” if he “provided information under

an express assurance of confidentiality or in circumstances

from which such an assurance could be reasonably inferred.”

Dep't of Justice v. Landano, 508 U.S. 165, 172, 113 S.Ct.

2014, 124 L.Ed.2d 84 (1993). For example, in the context

of a serious or violent crime we may infer an assurance of

confidentiality because of the risks of exposing a “criminal

enterprise ... inclined toward violent retaliation.” Mays v.

DEA, 234 F.3d 1324, 1330 (D.C. Cir. 2000). Of course,

we cannot “cloak in confidentiality anything anyone ever

tells a law enforcement officer about any ... crime.” Id.

Nonetheless, the government may invoke Exemption 7(D) if

the circumstances, such as the nature of the crime investigated

and the informant's relation to it, support an inference of

confidentiality. Id. at 1329.

The circumstances here easily support an inference

of confidentiality for each source in Troya's murder

investigation. 4 The FBI plausibly asserted it was “especially

important” to withhold information about sources in this

context “given the subject matter ... involves [the] murder

of a family on a roadside, [and Troya] was convicted for

such murder.” Similarly, the DEA explained the sources

provided information about an extensive drug trafficking

operation and therefore faced a threat of violent reprisal.

We have recognized implied assurances of confidentiality in

similar circumstances. See id. (informants to a conspiracy

to distribute crack cocaine); Hodge v. FBI, 703 F.3d 575,

578, 581–82 (D.C. Cir. 2013) (informants in a triple murder

investigation). The grisly nature of Troya's crime, committed

to further a drug trafficking operation, permits a fair inference

of confidentiality for the sources in Troya's investigation.

Because the information was provided by sources

with an implied assurance of confidentiality, we

need not address whether some information was

a66

Kowal v. United States Department of Justice, 107 F.4th 1018 (2024)

also provided pursuant to an express assurance of

confidentiality.

Kowal also maintains that any source who expected to testify

at trial cannot be considered confidential and is not protected

by Exemption 7(D). But our circuit has long rejected this

argument. “It would defeat the purpose of FOIA [E]xemption

7(D) to hold that the possibility of trial testimony to some

or all of the substance of an FBI interview establishes that

the source had no expectation that his identity would remain

undisclosed.” Schmerler v. FBI, 900 F.2d 333, 339 (D.C. Cir.

1990).

We note that Exemption 7(D) has no balancing test.

If “production of criminal investigative records could

reasonably be expected to disclose the identity of a

confidential source or information furnished by such a source,

that ends the matter.” Roth, 642 F.3d at 1184–85 (cleaned

up). The FBI and DEA demonstrated the sources here

were confidential and reasonably justified withholding the

information they provided in Troya's investigation.

provide drug traffickers information on how the agency

prioritized its investigations, permitting would-be criminals

to change their behaviors to avoid detection. Similarly,

the FBI's affidavit explained that providing information on

internal databases and file paths could aid in the commission

of cyberattacks against the agency. The agencies logically

connected withholding with preventing circumvention of the

law.

Kowal also claims this withheld information is publicly

available, but her evidence fails to support this contention.

For example, she asserts that a requested DEA manual is

public, providing an Amazon.com link. But this link is for

an outdated manual, and Kowal does not allege the DEA

officially released this manual. See, e.g., Medina-Hincapie

v. Dep't of State, 700 F.2d 737, 742 n.20 (D.C. Cir. 1983)

(observing an unauthorized disclosure does not waive a

FOIA exemption). Nor does Kowal demonstrate the agencies

merely withheld information on ordinary law enforcement

tactics already known to the public. Instead, the agencies’

affidavits detail how the agencies were protecting “methods ...

[the agency] considers meaningful ... [which] can reveal law

enforcement techniques and procedures.” Shapiro v. Dep't of

Justice, 893 F.3d 796, 800 (D.C. Cir. 2018).

Kowal also challenges the FBI's and DEA's Exemption 7(E)

withholdings. Exemption *1033 7(E) allows agencies to

withhold records when release would “disclose techniques

and procedures for law enforcement investigations or

prosecutions, or would disclose guidelines for law

enforcement investigations or prosecutions if such disclosure

could reasonably be expected to risk circumvention of the

law.” 5 U.S.C. § 552(b)(7)(E). The FBI and DEA invoked

Exemption 7(E) to withhold records detailing investigative

techniques, including technical information about computer

databases and internal systems.

The FBI and DEA met their burden to explain how disclosure

of the information could reasonably be expected to risk

To justify withholding under Exemption 7(E), an agency must

clear only a “low bar” by “demonstrat[ing] logically how the

release of the requested information might create a risk of

circumvention of the law.” Blackwell v. FBI, 646 F.3d 37, 42

(D.C. Cir. 2011) (cleaned up).

For the foregoing reasons, the agencies properly responded

to Kowal's FOIA requests. We therefore affirm the grants of

summary judgment to the FBI, ATF, and DEA.

This low bar is easily cleared here. The agencies provided

well-supported affidavits explaining how the information

withheld could aid criminal elements. For example, the

DEA's declarant explained the withheld information could

End of Document

circumvention of the law under Exemption 7(E). 5

Kowal also challenges the adequacy of the

agencies’ Vaughn indices and the appropriateness

of redactions. Her arguments largely mirror those

made against the FOIA exemptions, and they

similarly fail.

***

So ordered.

All Citations

107 F.4th 1018

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Case 1:18-cv-02798-TJK Document 49 Filed 09/30/21 Page 1 of 14 Appendix 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BARBARA KOWAL

Plaintiff,

Civil Action No. 18-2798 (TJK)

UNITED STATES DEPARTMENT OF

JUSTICE et al.,

Defendants.

MEMORANDUM OPINION

Barbara Kowal, a paralegal at the Federal Defender for the Middle District of Florida,

filed this Freedom of Information Act suit against the Department of Justice and three of its

components, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Federal Bureau of

Investigation, and the Drug Enforcement Agency. Kowal requested all records from the ATF

and FBI pertaining to Daniel Troya, a capital defendant represented by the Federal Defender in

his post-conviction hearings. The ATF and FBI produced documents from their records systems

but withheld others in whole or in part under several FOIA and Privacy Act exemptions. The

FBI also sent a subset of documents to the DEA for review, which were released in part to

Kowal. After cross-motions for summary judgment, the Court granted summary judgment for

Defendants as to the ATF and the adequacy of the FBI’s search, but concluded that the FBI’s

Vaughn indices were inadequate. Since then, the FBI has updated its Vaughn indices and the

parties have cross-moved again for summary judgment.

Defendants argue that their updated Vaughn indices are sufficient, they properly invoked

certain FOIA exemptions to justify their withholdings, and they met their duty to disclose all

reasonably segregable portions of the records at issue. In response, Kowal argues that the FBI’s

Case 1:18-cv-02798-TJK Document 49 Filed 09/30/21 Page 2 of 14

Vaughn indices are still inadequate, that the FBI failed to adequately justify the claimed FOIA

exemptions, improperly withheld information in the public domain, and failed to disclose all

reasonably segregable information. The Court finds that the FBI’s Vaughn indices are sufficient

and that it properly invoked Exemptions 3, 6, 7(C), 7(D), 7(E), and 7(F). The Court also finds

that the FBI met its duty to disclose all reasonably segregable portions of the records at issue.

The Court will therefore grant Defendants’ motion and deny Kowal’s.

Background

The Court granted Defendants’ previous motion for summary judgment as to the ATF

and as to the adequacy of the FBI’s search. Kowal v. DOJ, 490 F. Supp. 3d 53, 72 (D.D.C.

2020). The Court assumes familiarity with the facts and the contents of its prior Opinion and

Order. Since that time, Defendants have filed updated Vaughn indices and additional

declarations. See ECF 31-2. Pending before the Court are their renewed cross-motions for

summary judgment. ECF No. 31; ECF No. 36.

II.

Legal Standard

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56. Summary judgment is appropriate when, “viewing the evidence in the light most

favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable

jury could reach a verdict in their favor.” Lopez v. Council on Am.-Islamic Rels. Action Network,

Inc., 826 F.3d 492, 496 (D.C. Cir. 2016).

FOIA “requires federal agencies to disclose information to the public upon reasonable

request unless the records at issue fall within specifically delineated exemptions.” Judicial

Watch, Inc. v. FBI, 522 F.3d 364, 366 (D.C. Cir. 2008). It creates a “strong presumption in favor

Case 1:18-cv-02798-TJK Document 49 Filed 09/30/21 Page 3 of 14

of disclosure,” and “places the burden on the agency to justify the withholding of any requested

documents.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). If information is already in

the public domain, an agency cannot invoke an otherwise valid exemption to withhold it. See

Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 836 (D.C. Cir. 2001). When an

agency withholds portions of a record, it must still disclose “[a]ny reasonably segregable portion

. . . after deletion of the portions which are exempt.” 5 U.S.C. § 552(b).

A court reviewing a FOIA action may grant summary judgment based on the agency’s

declarations “[i]f an agency’s affidavit describes the justifications for withholding the

information with specific detail, demonstrates that the information withheld logically falls within

the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence

of the agency’s bad faith.” Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 619

(D.C. Cir. 2011). But the agency may not rely on “conclusory and generalized allegations of

exemptions” in its affidavits. Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973).

III.

Analysis

Sufficiency of FBI’s Vaughn Indices

Kowal again challenges the sufficiency of the Vaughn indices provided by the FBI.

Because FOIA requesters face information asymmetry that favors the agency, courts evaluating

claimed FOIA exemptions must rely on the agency’s representation of the materials it withholds.

See King v. DOJ, 830 F.2d 210, 218 (D.C. Cir. 1987). A sufficiently detailed Vaughn index

enables that evaluation. See Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006).

An agency must use a Vaughn index to explain withheld information by “specify[ing] in detail

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

484 F.2d at 827.

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A court evaluates a Vaughn index on its function, not its form. See Keys v. DOJ,

830 F.2d 337, 349 (D.C. Cir. 1987). An adequate Vaughn index functions in part to enable the

reviewing court to determine whether the agency properly invoked FOIA exemptions. See

Lykins v. DOJ, 725 F.2d 1455, 1463 (D.C. Cir. 1984). It does so if it “provide[s] a relatively

detailed justification, specifically identifying the reasons why a particular exemption is relevant

and correlating those claims with the particular part of a withheld document to which they

apply.” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977).

Thus, an index must “state the exemption claimed for each deletion or withheld document, and

explain why the exemption is relevant.” Founding Church of Scientology of Wash., D.C. v. Bell,

603 F.2d 945, 949 (D.C. Cir. 1979).

Kowal argues that the FBI has not cured the deficiencies in its Vaughn indices and fails to

“provide a relatively detailed justification, specifically identifying the reasons why a particular

exemption is relevant and correlating those claims with the particular part of a withheld

document to which they apply.” Mead Data Cent., Inc., 566 F.2d at 251. Kowal also argues that

“[f]requently the level of detail in the document descriptions is insufficient to allow a requestor

to reasonably determine whether the claimed exemptions have been properly invoked.” ECF No.

35 at 15. In ruling on the previous cross-motions for summary judgment, the Court noted that

the lack of document descriptions or submission of redacted documents made it difficult to

“understand with particularity which portions the FBI seeks to withhold under the exemptions

claimed.” Kowal v. DOJ, 490 F. Supp. 3d 53, 68 (D.D.C. 2020).

But the FBI’s revised indices resolve these issues. The Vaughn indices now include

descriptions as to the types of documents to which the exemptions are being applied. These

descriptions work in combination with coded designations and Defendants’ declarations to give

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Case 1:18-cv-02798-TJK Document 49 Filed 09/30/21 Page 5 of 14

further context as to why each exemption is relevant. In combination, these tools provide

enough information for the Court to understand the nature of the redacted material. See Judicial

Watch, 449 F.3d at 145. And ultimately, the FBI’s revised Vaughn indices adequately enable the

Court to review the agency’s withholdings under these exemptions. See Lykins, 725 F.2d at

1463.

The FBI’s Withholdings

Exemption 3

Defendants invoke Exemption 3 to withhold documents “relating to wire and electronic

communications interception and interception of oral communications.” ECF No 31-2 at 38

(“Second Hertel Decl.”) ¶ 9. FOIA’s Exemption 3 exempts records that are “specifically

exempted from disclosure by statute” if the statute “requires that the matters be withheld from

the public in such a manner as to leave no discretion on the issue.” 5 U.S.C. § 552(b)(3)(A)(i).

And the D.C. Circuit has held that “intercepted communications” obtained under a Title III

wiretap fall “squarely within the scope” of Exemption 3. Chong v. DEA, 929 F.2d 729, 733

(D.C. Cir. 1991).

Defendants invoked this exemption for two pages of a “narrative summary of the

initiation of an investigation of a targeted drug trafficking organization.” See ECF No. 31-2 at

12. The FBI’s declaration explains that it invoked the exemption because portions of the records

are based on wire and electronic communication interceptions and are thus protected under 18

U.S.C. § 3510. Second Hertel Decl. ¶ 9. But Kowal argues that Defendants have not met their

burden to withhold these pages due to the potential applicability of the public domain doctrine.

See ECF No. 35 at 17. She reasons that the recorded wiretaps were played at trial and are

therefore part of the public domain. She invokes Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir.

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Case 1:18-cv-02798-TJK Document 49 Filed 09/30/21 Page 6 of 14

1999), to suggest that these recordings “los[t] their protective cloak once disclosed” and that

without more information, the Court cannot evaluate whether the FBI improperly withheld

materials already in the public domain.

But Kowal’s argument misses a critical point—the Vaughn index makes clear that the

records at issue are part of a “narrative summary” document, not a transcript or tapes of a

wiretap. See ECF No. 31-2 at 12. Even assuming the wiretaps referenced in the narrative

summary were played at trial, Kowal has not shown that the document at issue is part of the

public domain. “For the public domain doctrine to apply, the specific information sought must

have already been ‘disclosed and preserved in a permanent public record.’” Students Against

Genocide, 257 F.3d at 836 (quoting Cottone, 193 F.3d at 554). Thus, Defendants have properly

invoked Exemption 3.

Exemptions 6 and 7(C)

Under Exemptions 6 and 7(C), Defendants withheld the identities of, and personal

information about, individuals involved or associated with law enforcement investigations.

Second Hertel Decl. ¶ 16. All information that “applies to a particular individual” qualifies for

consideration under Exemption 6. See U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602

(1982); see also Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. DOJ, 503 F. Supp. 2d 373, 381

(D.D.C. 2007) (“Congress’[s] primary purpose in drafting Exemption 6 was to provide for

confidentiality of personal matters.”). And under Exemption 7(C), “the standard for evaluating a

threatened invasion of privacy interests resulting from the disclosure of records compiled for law

enforcement purposes is somewhat broader than the standard applicable to personnel, medical,

and similar files” under Exemption 6. DOJ v. Reps. Comm. for Freedom of the Press,

489 U.S. 749, 756 (1989). Thus, because “Exemption 7(C) is more protective of privacy than

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Case 1:18-cv-02798-TJK Document 49 Filed 09/30/21 Page 7 of 14

Exemption 6,” U.S. Dep’t of Def. v FLRA, 510 U.S. 487, 496 n.6 (1994), and the records at issue

were compiled for law enforcement purposes, the Court need only consider whether the FBI

properly invoked Exemption 7(C). See Roth v. DOJ, 642 F.3d 1161, 1173 (D.C. Cir. 2011)

(“[A]ll information that would fall within the scope of Exemption 6 would also be immune from

disclosure under Exemption 7(C).”). Narrowing the analysis further, because Kowal does not

dispute that the requested records about Troya’s criminal prosecution are law enforcement files

for purposes of Exemption 7(C), the Court need only evaluate the FBI’s redactions by balancing

“the privacy interests involved against the public interest in disclosure.” SafeCard Servs., Inc. v.

S.E.C., 926 F.2d 1197, 1205 (D.C. Cir. 1991).

“Exemption 7(C) ‘affords broad[] privacy rights to suspects, witnesses, and

investigators.’” SafeCard Servs., 926 F.2d at 1205 (quoting Bast v. DOJ, 665 F.2d 1251, 1254

(D.C. Cir. 1981)). And the public interest in personally identifiable information is “not just less

substantial, it is insubstantial,” id., unless there is “compelling evidence that the agency denying

the FOIA request is engaged in illegal activity” and “access to the names of private individuals

appearing in the agency's law enforcement files is necessary to confirm or refute that evidence.”

Id. at 1205–06. Otherwise, “there is no reason to believe that the incremental public interest in

such information would ever be significant,” and the information is exempt from disclosure. Id.

at 1206. Since Kowal does not point to any illegal activity implicating the FBI or its redactions

under Exemptions 6 and 7(C), the Court cannot find fault with the balance that the FBI struck.

Kowal argues that Defendants have provided no facts to suggest that disclosure would

work a clearly unwarranted invasion of personal privacy so as to outweigh public interest in

disclosure. See ECF No. 35 at 21. In part, this argument presumes that these individuals’

identities were revealed at trial. While perhaps some of them were, Kowal does not meet her

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burden to show that the identical documents and information that FBI seeks to withhold here

were made public then. See Bartko v. DOJ, 167 F. Supp.3d 55, 72 (D.D.C. 2016) (“Aside from

the trial testimony she references, the plaintiff has not even tried to explain how the balance of

the materials she seeks is public.”) (cleaned up); Black v. DOJ, 69 F. Supp. 3d 26, 35 (D.D.C.

2014) (determining burden unmet where plaintiff provided court transcripts but failed “to point

to specific information identical to that being withheld that has been placed in the permanent

public record”).1 Further, “[e]ven if [Kowal] already knows the identities of trial witnesses, the

[FBI’s] decision to withhold their names and other identifying information under Exemption

7(C) is justified” because “[a] witness does not waive his or her interest in personal privacy by

testifying at a public trial.” Sellers v. DOJ, 684 F. Supp. 2d 149, 159–60 (D.D.C. 2010); see also

Lardner v. DOJ, No. 03-cv-0180 (JDB), 2005 WL 758267, at *19 (D.D.C. Mar. 31, 2005)

(finding that the name of a witness who testified at a public trial was properly withheld under

Exemption 7(C)). Ultimately, Kowal has not shown that the withheld material is in the public

domain, or that the balance of interests tips towards release of the information withheld by

Defendants under Exemptions 6 and 7(C).

Exemption 7(D)

Exemption 7(D) allows the withholding of records that could disclose the identity of

confidential sources as well as any information those sources provide. 5 U.S.C. § 552(b)(7)(D).

Kowal also argues that an October 31, 2007, third-party plea agreement, Exhibit BB (TT 5953),

is within the public domain because it was admitted into evidence at Troya’s trial. ECF No. 443. But the FBI attests that the plea agreement is not available on the public docket and thus is

not in the public domain. In Cottone, the court held that the government can rebut a plaintiff’s

suggestion that trial records are in public domain by showing that the evidence has since been

“destroyed, placed under seal, or otherwise removed from the public domain.” 193 F.3d 550,

556 (D.C. Cir. 1999). Thus, because the plea agreement is not available on the public docket, it

is not in the public domain, and may be withheld under Exemption 7(C).

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In determining the applicability of the exemption, “the question is . . . whether the particular

source spoke with an understanding that the communication would remain confidential.” DOJ v.

Landano, 508 U.S. 165, 172 (1993). Defendants invoked Exemption 7(D) to “withhold portions

of the report that contained information that would disclose the identity of and the information

provided by a confidential source.” Second Hertel Decl. ¶ 27. Defendants claim that sometimes

they gave an express assurance of confidentiality to their sources and, at other times, an

assurance of confidentiality was implied, given the subject matter of the investigation. Id. ¶ 28;

ECF No. 31 at 14.

Kowal argues that Defendants improperly presumed that any individuals who provided

information to the FBI did so under an implied assurance of confidentiality. See ECF No. 35 at

25. Kowal is right that it would be improper to apply a blanket presumption. See Landano,

508 U.S. at 175–76. But an assurance of confidentiality can still be implied based on the nature

of the criminal investigation and the informant’s relationship to the target. Id. at 179. This is

one of those situations. The FBI explains that the sources provided information about a “drug

organization” and the related murder of a family on a roadside. ECF No. 40-2 at 11. 2 And

Courts often find that confidentiality is implied in illicit drug trade investigations because violent

reprisal is so common. See, e.g., Wilson v. DEA, 414 F. Supp. 2d 5, 15 (D.D.C. 2006); Mays v.

DEA, 234 F.3d 1324, 1329–30 (D.C. Cir. 2000); Love v. DOJ, No. 13-cv-1303,

To the extent Kowal argues that the “particularized approach” laid out in Landano requires

information about the specific circumstances of each informant, ECF No. 35 at 24, she overstates

the holding of that case. Landano rejects a categorical presumption of confidentiality for all

investigations and instead requires the government to distinguish those investigations for which

they assert Exemption 7(D) from the run-of-the-mill variety. See also Quiñon v. FBI,

86 F.3d 1222, 1231 (D.C. Cir. 1996) (discussing the “case-specific factor” cited to justify

invocation of Exemption 7(D)). But Landano does not require that each distinguishing factor be

provided to the Court as to each individual source, and Kowal cites no case law to support such a

requirement.

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2015 WL 5063166 at *6 (D.D.C. 2015). Because of the nature of the investigation, the Court

can infer an assurance of confidentiality. And this inferred assurance of confidentiality allows

the Court to conclude that Defendants properly invoked Exemption 7(D).

Exemption 7(E)

Exemption 7(E) allows the withholding of documents complied for law enforcement

purposes if disclosing such records “would disclose techniques and procedures for law

enforcement investigations or prosecutions, or would disclose guidelines for law enforcement

investigations or prosecutions if such disclosure could reasonably be expected to risk

circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Agencies face a “relatively low bar” when

trying to withhold information under Exemption 7(E). Blackwell v. FBI, 646 F.3d 37, 42 (D.C.

Cir. 2011). The agency need only “demonstrate logically how the release of the requested

information might create risk of circumvention of the law.” Id. (quoting Mayer Brown LLP v.

IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009)).

Both the FBI and DEA’s Vaughn indices reflect withholdings based on this exemption.

The FBI withheld four categories of information: “Sensitive Information within FBI FD-515

Forms,” “Internal Secure File Paths and E-mail Web Addresses,” “Investigative Techniques and

Procedures Relevant to the FBI’s Informant Program,” and “Database Identifier[s].” See ECF

No. 19-6 at 30–35. The Hardy Declaration describes each of these categories and presents the

logic for how release of the requested information might create risk of circumvention of the law.

See ECF No. 19-6 at 30–35. And the DEA invoked this exemption to withhold several pages of

a “Organized Crime Drug Enforcement Task Force (OCDETF) Investigation Initiation Form

Narrative Summary of the Case Investigation.” ECF No. 31-2 at 52–57. The Hertel Declaration

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also explains that the exempt portions “deal with manpower requirements, tools to be used in the

investigation, strategy for pursuing the targeted information, and more.” ECF No. 31-2 at 46–47.

Kowal contests Defendants’ reliance on Exemption 7(E) on several grounds. First, she

argues that the “FBI has failed to demonstrate that the information it has withheld concerns

techniques that are not otherwise already in the public domain.” ECF No. 35 at 28. And second,

she argues that Defendants have not shown that they have met their segregability responsibilities

about material withheld under Exemption 7(E). She specifically flags a document appearing at

bates-stamped page 141, which Defendants withheld in full, despite their invocation of 7(E) to

redact “Internal Secure File Paths and E-mail Web Addresses.” ECF No. 35 at 28–29. And

finally, she challenges Defendants’ establishment of a logical connection between the withheld

information and circumvention of the law, specifically pointing to information withheld under

the “database identifiers” and “internal secure file paths” categories. ECF No. 44 at 19–20.

Defendants face only a relatively low bar to invoke Exemption 7(E), and they have

cleared it. As for Kowal’s public domain argument, the Hardy Declaration makes clear that

information related to publicly known law enforcement techniques was withheld because it also

included non-public information. For example, Defendants acknowledge that the surveillance

techniques discussed on pages with redactions for “Sensitive Information within FBI FD-515

Forms” are publicly known. But the information redacted there is a rating scale assessing the

effectiveness of each technique in the context of the investigation, as well as information about

law enforcement partnerships used to carry out the techniques. Kowal does not argue that this

kind of specific contextual and analytical information is publicly known. And as Defendants

suggest, this sort of information could alert potential criminals to the techniques that the FBI

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finds useful in a certain type or stage of investigation, as well as their law enforcement partners

that might be involved in these investigative methods.

Kowal’s arguments related to “Internal Secure File Paths and E-mail Web Addresses”

also come up short. First, as to bates-stamped page 141, Defendants explain that a sensitive file

path was withheld under Exemption 7(E), but that other information on that page was withheld

under other exemptions, which ultimately caused Defendants to withhold the entire page. ECF

40-1 at 5. And second, Defendants have met their burden to “demonstrate logically how the

release of the requested information might create risk of circumvention of the law.” Blackwell,

646 F.3d at 42. The FBI explains that “internal secure file paths” “if released, could allow

hackers with technical skills an opportunity to exploit the FBI by disrupting the FBI’s internal

communications. By releasing this information publicly, the FBI could jeopardize its own secure

technological infrastructure thereby assisting criminals in circumventing the law.” ECF 40-1 at

5. And as for “database identifiers,” the FBI explains that “[r]eleasing the identity of this

database would give criminals insight into the available tools and resources the FBI and its

partners use to conduct criminal and national security investigations.” ECF 19-6 at 35. This

kind of technical information is regularly withheld under Exemption 7(E), and the FBI has

sufficiently explained the logic that justifies withholding it here. See Price v. DOJ, No. 18-cv1339 (CRC), 2020 WL 3972273, at *13 (D.D.C. July 14, 2020); Dutton v. DOJ, 302 F. Supp.

3d 109, 125 (D.D.C. 2018).

Exemption 7(F)

Exemption 7(F) allows the withholding of documents compiled for law enforcement

purposes if disclosure “could reasonably be expected to endanger the life or physical safety of

any individual.” 5 U.S.C. § 552(b)(7)(F). Defendants only invoke Exemption 7(F) in

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conjunction with Exemption 7(C). ECF No. 31-2 at 7–31. Given that Exemption 7(F) is “an

absolute ban against certain information and, arguably, an even broader protection than 7(C),”

Raulerson v. Ashcroft, 271 F. Supp. 2d 17, 29 (D.D.C. 2002), and as the Court has determined

that Defendants properly invoked Exemption 7(C), the Court need not reach the applicability of

Exemption 7(F). See Wilson v. DEA, 414 F. Supp. 2d 5, 14 n.8 (D.D.C. 2006).

Segregability of the Documents FBI Withheld in Full

Finally, Kowal argues that the FBI failed to show how portions of documents it withheld

in full were not segregable. Segregability is analyzed using a burden-shifting framework.

Agencies must provide a “detailed justification” for the non-segregability of the withheld

information, although not “so much detail that the exempt material would be effectively

disclosed.” Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002). Agencies

typically meet their initial burden by providing a Vaughn index and “a declaration attesting that

the agency released all segregable material.” Judicial Watch, Inc. v. DOJ, 20 F. Supp. 3d 260,

277 (D.D.C. 2014). Once that happens, “[a]gencies are entitled to a presumption that they

complied with the obligation to disclose reasonably segregable material.” Sussman v. U.S.

Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). The plaintiff must then produce a

“quantum of evidence” rebutting this presumption, at which point “the burden lies with the

government to demonstrate that no segregable, nonexempt portions were withheld.” Id.

Kowal argues that Defendants’ justifications for withholding the documents in full were

too conclusory and circular to prove that the agency properly determined that there were no

segregable portions. ECF No. 40 at 30. But the FBI has met its initial burden here and the

plaintiff has not produced a “quantum of evidence” to rebut it. The FBI has provided a Vaughn

index detailing which documents have been withheld in full and which exemptions were applied.

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And, as its declaration explains, “any non-exempt information on [pages withheld in full] was so

intertwined with exempt material, no information could be reasonably segregated for release.”

ECF 19-6 at 38. Upon review of the relevant Vaughn indices and Defendants’ declarations, the

Court is satisfied that Defendants have shown that no portion of the documents withheld in full is

reasonably segregable and therefore must be disclosed.3

IV.

Conclusion

For all the above reasons, the Court will grant Defendants’ Motion for Summary

Judgment and deny Kowal’s Motion for Summary Judgment. A separate order will issue.

/s/ Timothy J. Kelly

TIMOTHY J. KELLY

United States District Judge

Date: September 30, 2021

Upon consideration of the Plaintiff’s Proposed Amended Counterstatement of Material Facts,

ECF No. 43-1, the Court does not find that the Proposed Counterstatement materially impacts its

opinion or the reasoning underlying it. Therefore, the Court will deny the Plaintiff’s Motion to

Amend as moot.

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Case 1:18-cv-02798-TJK Document 55 Filed 06/27/22 Page 1 of 7 Appendix 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BARBARA KOWAL,

Plaintiff,

Civil Action No. 18-2798 (TJK)

UNITED STATES DEPARTMENT OF JUSTICE et al.,

Defendants.

MEMORANDUM OPINION

Barbara Kowal, a paralegal assisting a federal criminal defendant in his post-conviction

proceedings, submitted requests under the Freedom of Information Act for records about that defendant from several federal agencies, including the Federal Bureau of Investigation, or FBI, and

the Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF. Kowal later sued these agencies over their responses to her requests. As relevant here, the Court granted the ATF summary

judgment as to the adequacy of its search for records, granted the FBI summary judgment on its

decision to withhold a plea agreement under a FOIA exemption, and entered final judgment in

their favor. Kowal now moves to alter or amend the judgment, challenging these two aspects of

the Court’s summary judgment rulings. There is no clear error for the Court to correct, so it will

deny the motion.

Background

The Court assumes familiarity with the background of this case. See ECF No. 29; ECF

No. 49. Briefly, Kowal is a paralegal for the Federal Defender for the Middle District of Florida,

which represents federal criminal defendant Daniel Troya in post-conviction proceedings. ECF

No. 29 at 1–2. She submitted FOIA requests for records related to Troya from the ATF and the

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FBI. Id. at 2. These agencies searched for responsive records, reviewed the results of their

searches, and produced some records but withheld others under FOIA exemptions. Id. at 2–7.

Kowal later sued. She alleged that these agencies violated FOIA in several ways, including

by failing to conduct adequate searches and wrongly withholding responsive records. ECF No. 1

¶¶ 32–43. After one round of summary judgment briefing, the Court granted both agencies summary judgment as to the adequacy of their searches and granted the ATF summary judgment on

whether it had wrongfully withheld any records. But it denied summary judgment for both Kowal

and the FBI as to whether the FBI had improperly withheld records. See ECF No. 29 at 8–24.

After another round of briefing, the Court granted the FBI summary judgment and entered final

judgment. See ECF No. 48; ECF No. 49.

Kowal now moves to alter or amend the judgment. See Fed. R. Civ. P. 59(e). She argues

that the Court clearly erred in granting summary judgment for the ATF about the adequacy of its

search and for the FBI about its withholding of a third-party plea agreement. ECF No. 50. The

agencies oppose. ECF No. 53.

Legal Standard

Rule 59(e) allows a district court to correct its own mistakes in the period immediately

following the entry of judgment. White v. N.H. Dep’t of Emp. Sec., 455 U.S. 445, 450 (1982). But

“[a]ltering or amending a judgment under Rule 59(e) ‘is an extraordinary remedy which should be

used sparingly.’” Ecological Rts. Found. v. U.S. EPA, 541 F. Supp. 3d 34, 45 (D.D.C. 2021)

(quoting Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 17 (D.C. Cir. 2015)). A Rule 59(e)

motion “need not be granted unless the district court finds that there is an intervening change of

controlling law, the availability of new evidence, or the need to correct a clear error or prevent

manifest injustice.” Pigford v. Perdue, 950 F.3d 886, 891 (D.C. Cir. 2020) (internal quotation

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marks omitted). To be clearly erroneous, a “final judgment must be dead wrong”—it must “strike

the court as wrong with the force of a five-week-old, unrefrigerated dead fish.” Slate v. Am. Broad.

Cos., 12 F. Supp. 3d 30, 35 (D.D.C. 2013) (cleaned up); see also New York v. United States, 880

F. Supp. 37, 39 (D.D.C. 1995) (per curiam) (“Only if the moving party presents . . . a clear error

. . . which compel[s] a change in the court’s ruling will the motion to reconsider be granted.” (internal quotation marks omitted)). A Rule 59(e) motion is not a vehicle for “new arguments or

evidence that the moving party could have raised before the decision issued.” Ecological Rts.

Found., 541 F. Supp. 3d at 46 (cleaned up). The party seeking Rule 59(e) relief has the burden to

prove that it is warranted. See Bowser v. Smith, 401 F. Supp. 3d 122, 124 (D.D.C. 2019).

Analysis

Kowal argues that the Court’s summary judgment decisions about the adequacy of the

ATF’s search and the FBI’s withholding of a third-party plea agreement were clearly erroneous.

See ECF No. 50 at 5, 8. But she has not met the “very exacting standard” to show clear error in

either ruling. See Slate, 12 F. Supp. 3d at 35.

First, the Court did not clearly err in granting summary judgment in favor of the ATF about

the adequacy of its search. This issue came up in the first round of summary judgment briefing.

The ATF moved for summary judgment, arguing that its search for records in response to Kowal’s

FOIA requests was adequate. ECF No. 19 at 4–5. As pertinent here, Kowal opposed summary

judgment because there were “‘positive indications of overlooked materials,’” explaining that she

possessed more than two hundred “DVDs, CDs, audio recordings, and photos of evidence” that

were responsive to her FOIA requests but that the agencies did not identify or produce in responding to those requests. ECF No. 21 at 27–28 (quoting Valencia-Lucena v. U.S. Coast Guard, 180

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F.3d 321, 327 (D.C. Cir. 1999)). The Court rejected Kowal’s challenge and granted the ATF

summary judgment as to the adequacy of its search. See ECF No. 29 at 8–10, 12–15, 25.

Kowal now argues that the Court clearly erred by misapplying the summary judgment

standard in rejecting her “overlooked materials” argument and then granting the ATF summary

judgment. ECF No. 50 at 8–15. Not so.

When an agency seeks summary judgment in a FOIA case because its search was adequate,

the agency “must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.”

Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). If the agency makes that prima

facie showing, the burden shifts to the requester to come forward with “countervailing evidence,”

such as “positive indication[s] of overlooked materials,” that “raises substantial doubt” about the

search’s adequacy. See Iturralde v. Comptroller of Currency, 315 F.3d 311, 314–15 (D.C. Cir.

2003) (cleaned up); Schoenman v, FBI, 764 F. Supp. 2d 40, 46 (D.D.C. 2011). If the requester’s

“countervailing evidence” fails to “raise a ‘substantial doubt’ as to the adequacy of the [agency’s]

search,” summary judgment for the agency on this issue is appropriate. See Schoenman v. FBI,

764 F. Supp. 2d at 51–52 (quoting Iturralde, 315 F.3d at 314); Wright v. Admin. for Children &

Families, No. 15-cv-218 (BAH), 2016 WL 5922293, at *8–9 (D.D.C. Oct. 11, 2016).

Previously, the Court found that the ATF carried its initial burden to show that its search

was adequate. See ECF No. 29 at 8–10, 12–15. Thus, to stave off summary judgment for the ATF

on this issue, Kowal had to show that the “overlooked materials” she referenced raised “substantial

doubt” about the adequacy of the ATF’s search. See Schoenman, 764 F. Supp. 2d at 46. She

didn’t. All that she argued on this point was that

[h]ere, there are records which could have been located and produced had a proper

search been conducted. These include, but are not limited to DVDs, CDs, audio

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recordings, and photos of evidence. Plaintiff is in possession of over two hundred

such items obtained in the course of post conviction representation of Mr. Troya

that would be responsive to the FOIA requests, however, not one DVD, CD, audio

recording, or photo has been produced by the Defendants. It appears the agency

has completely overlooked or without documenting completely withheld all but

written records.

ECF No. 21 at 27–28. She supported her argument with one paragraph in her declaration, in which

she stated that she was “in possession of over two hundred items comprising DVDs, CDs, audio

recordings, and photos that would be responsive to [her] various requests” but that “Defendants[]”

had not “acknowledged or produced.” ECF No. 21-1 ¶ 23. The Court rejected Kowal’s argument

mainly because she did not “explain[] why, just because she has” these records, “the ATF must

also have them such that it could produce them in response to a FOIA request.” ECF No. 29 at

15. That is, Kowal’s vague and conclusory assertions failed to raise a substantial doubt about the

adequacy of the ATF’s search in the face of its prima facie showing that its search was adequate.

The Court sees no error, let alone clear error, in this conclusion. See Lopez v. Exec. Off. for U.S.

Attys., 598 F. Supp. 2d 83, 87 (D.D.C. 2009).

In her motion, Kowal now raises new points to support her “overlooked materials” argument. For instance, she explains that “Defendants” produced some of the allegedly overlooked

records to Troya “in the context of his criminal proceeding,” purportedly showing that these

“agency records exist.” ECF No. 50 at 8. She also observes that, in the second round of summary

judgment briefing, she “submitted the exhibit list from . . . Troya’s capital trial,” showing that “the

government” introduced “a number of photographs and recordings into evidence.” ECF No. 50 at

10 n.5 (citing ECF No. 44-2). Kowal’s representations remain vague about precisely what the

overlooked records are and where (for the most part) she got them. And she still does not explain

why the ATF’s failure to identify or produce them in response to her request is a “positive indication of overlooked materials” raising a “substantial doubt” about the adequacy of the ATF’s search,

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particularly given the various law enforcement agencies involved in Troya’s case. But in any

event, she does not explain why she failed to make these arguments before the Court granted summary judgment for the ATF. These arguments could have been raised then and so provide no basis

for Rule 59(e) relief now.

Second, the Court did not clearly err in granting the FBI summary judgment over its withholding of a third-party plea agreement. This issue came up in the second round of summary

judgment briefing. Kowal argued that the FBI improperly invoked FOIA Exemptions 6 and 7(C)

to withhold the plea agreement of one of Troya’s co-defendants because of the public-domain

doctrine, see ECF No. 35 at 20, under which “materials normally immunized from disclosure under

FOIA lose their protective cloak once disclosed and preserved in a permanent public record,” see

Cottone v. Reno, 193 F.3d 550, 553–54 (D.C. Cir. 1999). Kowal argued that the public-domain

doctrine applied because the plea agreement was admitted into evidence at Troya’s trial and discussed in open court. ECF No. 35 at 20; see also ECF No. 44 at 14. In granting the FBI summary

judgment on this issue, the Court found that the plea agreement “is not available on the public [i.e.,

electronic] docket” of Troya’s criminal case and thus “is not in the public domain,” making the

public-domain doctrine inapplicable. See ECF No. 49 at 8 n.1.

Kowal argues that the Court clearly erred in so concluding because the plea agreement, as

a trial exhibit, became a judicial record subject to the “common-law right of access to judicial

records,” meaning that it is in the public domain despite its inaccessibility on the “public docket.”

See ECF No. 50 at 5–7. Even assuming the plea agreement is somehow publicly accessible in the

trial court’s records despite not being on the public docket, the Court sees no clear error in its

previous ruling. Under the public-domain doctrine, information previously placed in the public

domain that “has since become practically obscure . . . should not . . . necessarily be considered

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permanently part of the public domain” to trigger the doctrine. See Albert v. DOJ, No. 04-5111,

2005 WL 79028, at *1 (D.C. Cir. Jan. 11, 2005) (cleaned up) (following Davis v. U.S. DOJ, 968

F.2d 1276, 1279 (D.C. Cir. 1992)). In other words, the public-domain doctrine does not require

the disclosure of otherwise exempt materials—particularly materials exempt from disclosure under

Exemption 7(C)—that are “technically public but practically obscure.” See Kolbusz v. FBI, No.

17-cv-319 (EGS/GMH), 2021 WL 1845352, at *19 (D.D.C. Feb. 17, 2021) (cleaned up); see also

DOJ v. Reporters Comm, for Freedom of Press, 489 U.S. 749, 762–64 (1989); Bartko v. U.S. DOJ,

167 F. Supp. 3d 55, 71 (D.D.C. 2016). Because the plea agreement, at the very least, “is not

available on the [trial court’s] public docket,” it is practically obscure, even if it is technically

public. See ECF No. 49 at 8 n.1. Thus, the Court did not clearly err in concluding that the FBI’s

withholding was proper.

Conclusion

For these reasons, the Court will deny Kowal’s motion to alter or amend. A separate order

will issue.

/s/ Timothy J. Kelly

TIMOTHY J. KELLY

United States District Judge

Date: June 27, 2022

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Appendix 4

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Appendix 5

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Appendix 6

The Freedom of Information Act, 5 U.S.C. § 552(b) (2012), provides in pertinent

part:

Public information; agency rules, opinions, orders, records, and

proceedings

(a)(3)(A) Except with respect to the records made available under paragraphs

(1) and (2) of this subsection, and except as provided in subparagraph (E), each

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.

(b) This section does not apply to matters that are—

(6)

personnel and medical files and similar files the disclosure of which

would constitute a clearly unwarranted invasion of personal privacy;

(7)

records or information compiled for law enforcement purposes, but only

to the extent that the production of such law enforcement records or information (A)

could reasonably be expected to interfere with enforcement proceedings, (B) would

deprive a person of a right to a fair trial or an impartial adjudication, (C) could

reasonably be expected to constitute an unwarranted invasion of personal privacy,

(D) could reasonably be expected to disclose the identity of a confidential source,

including a State, local, or foreign agency or authority or any private institution

which furnished information on a confidential basis, and, in the case of a record or

information compiled by criminal law enforcement authority in the course of a

criminal investigation or by an agency conducting a lawful national security

intelligence investigation, information furnished by a confidential source, (E) would

disclose techniques and procedures for law enforcement investigations or

prosecutions, or would disclose guidelines for law enforcement investigations or

prosecutions if such disclosure could reasonably be expected to risk circumvention of

the law, or (F) could reasonably be expected to endanger the life or physical safety of

any individual;

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Appendix 7

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Appendix 8

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BARBARA KOWAL,

Plaintiff,

Civil Action No. 1:18-cv-2798-TJK

UNITED STATES DEPARTMENT

OF JUSTICE, et al.,

Defendants.

______________________________/

MOTION TO ALTER OR AMEND

Pursuant to Federal Rule of Civil Procedure 59(e) (“Rule 59(e)”), Plaintiff

Barbara Kowal respectfully moves this Court to alter or amend its

Memorandum Opinion and Order partially granting Defendants’ first motion

for summary judgment, see ECF No. 29 (issued Sep. 24, 2020), and its

Memorandum Opinion granting Defendants’ renewed motion for summary

judgment. See ECF No. 49 (issued Sep. 30, 2021). In support of this Motion,

Plaintiff states the following:

Relevant Procedural History

Plaintiff, a paralegal at the Federal Defender for the Middle District of

Florida, filed a FOIA suit against the Defendants—the United States

Department of Justice and three of its components (ATF, FBI, and DEA)—after

requesting all records from the ATF and FBI pertaining to Daniel Troya, a

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capital defendant represented by the Federal Defender in his post-conviction

hearings. The ATF and FBI produced some documents from their records

systems but withheld other documents in whole or in part under several FOIA

exemptions.

First Round of Summary Judgment

Defendants moved for summary judgment, arguing the ATF and FBI

adequately searched for records and properly withheld documents pursuant to

certain FOIA exemptions. ECF No. 19. Plaintiff cross-moved for summary

judgment. ECF No. 21. As relevant here, Plaintiff argued the ATF’s search was

inadequate because there was evidence showing the existence of overlooked

records. ECF No. 21 at 27-28. 1 Specifically, Plaintiff pointed to investigative

records—over two hundred DVDs, CDs, audio recordings, and photos—that

were produced by DOJ counsel at the time of Mr. Troya’s trial, but which

Defendants failed to locate in response to Plaintiff’s FOIA request. Id. Plaintiff

also argued that the FBI failed to justify its withholdings and improperly

withheld information in the public domain. Id. at 28-31.

On September 24, 2020, this Court issued a Memorandum Opinion and

Order granting, in part, Defendants’ motion for summary judgment. ECF No.

29. As to the issue of the adequacy of the search, this Court ruled:

1 The citations in this motion adopt the pagination in the ECF-generated headers of

the parties’ filings.

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[A]s for the absence of items allegedly in Kowal’s possession, she

has not explained why, just because she has them, the ATF must

also have them such that it could produce them in response to a

FOIA request. While positive indications of overlooked materials

may show that a search was inadequate, the standard typically

applies when the requester can show that the agency itself ignored

those indications when it conducted its search. Since the adequacy

of a FOIA search is not judged on results, but rather on the good

faith search itself, the missing items do not show that the search

was inadequate. The ATF may simply not have them, and even if

it does, a reasonable and thorough search may have missed them

for whatever reason.

ECF No. 29 at 15 (cleaned up).

As to the propriety of the FBI’s withholdings, the Court agreed with

Plaintiff that the agency failed to provide sufficient information in its Vaughn

index to allow the Court to “determine whether the FBI has properly invoked

its asserted FOIA exemptions[.]” ECF No. 29 at 18. The Court held that

“[b]ecause of the FBI’s inadequate Vaughn index, the Court need not decide

whether the FBI improperly withheld any information already in the public

domain[.]” Id. at 18 n.13. The Court noted, however, that the FBI would be

given an opportunity to submit a revised Vaughn index, id. at 18, and further

ordered that the parties submit a joint schedule for briefing renewed motions

for summary judgment to resolve the outstanding issues as to the FBI. Id. at

26.

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Second Round of Summary Judgment

Defendants filed a renewed motion for summary judgment, accompanied

by updated Vaughn indices and additional declarations. ECF No. 31. Plaintiff

filed a renewed cross-motion for summary judgment. ECF No. 35. As relevant

here, Plaintiff argued the FBI failed to justify its withholding of an October 31,

2007 third-party plea agreement. See ECF No. 35 at 20. Specifically, Plaintiff

argued this record is within the public domain because it was admitted into

evidence at Mr. Troya’s public trial. Id. See also ECF No. 44 at 14-15; ECF No.

44-3 (Exhibit BB).

On September 30, 2021, the Court granted Defendants’ renewed motion

for summary judgment. ECF No. 49. As to the “public domain” issue, this Court

ruled:

[T]he FBI attests that the plea agreement is not available on the

public docket and thus is not in the public domain. In Cottone, the

court held that the government can rebut a plaintiff’s suggestion

that trial records are in public domain by showing that the

evidence has since been “destroyed, placed under seal, or otherwise

removed from the public domain.” 193 F.3d 550, 556 (D.C. Cir.

1999). Thus, because the plea agreement is not available on the

public docket, it is not in the public domain, and may be withheld

under Exemption 7(C).

ECF No. 49 at 8 n.1.

The Court entered final judgment on that same day. ECF No. 48.

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II.

Standard of Review

Rule 59(e) was adopted “to make clear that the district court possesses

the power to rectify its own mistakes in the period immediately following the

entry of judgment.” White v. New Hampshire Dep’t of Emp’t. Sec., 455 U.S. 445,

450 (1982) (internal quotations omitted). District courts have “substantial

discretion in ruling on motions for reconsideration” pursuant to Rule 59(e).

Black v. Tomlinson, 235 F.R.D. 532, 533 (D.D.C.2006). Such a motion is

appropriate in cases where there is a need to correct a clear error, or to prevent

manifest injustice. Firestone v. Firestone, 76 F.3d 1205, 1280 (D.C. Cir. 1996).

III.

The Court erred in holding the third-party plea agreement is

not within the public domain.

As this Court correctly noted, if information is already in the public

domain, an agency cannot invoke an otherwise valid exemption to withhold it.

See ECF No. 49 at 3 (citing Students Against Genocide v. U.S. Dep’t of State,

257 F.3d 828, 836 (D.C. Cir. 2001)). Here, Plaintiff relied on the public domain

doctrine to challenge Defendants’ withholding of an October 31, 2007 thirdparty plea agreement. Specifically, Plaintiff repeatedly noted that the plea

agreement was entered into evidence as an exhibit by the government at Mr.

Troya’s trial and addressed at length in open court. See ECF No. 35 at 20; ECF

No. 35-1 (Exhibit K); ECF No. 44 at 14. Plaintiff even produced that trial

exhibit, ECF No. 44-3 at 1-5, as well as the relevant trial transcript page

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showing that the government was the party that entered it into evidence. ECF

No. 44-3 at 6. Thus, this record is clearly in the public domain. 2 This Court’s

ruling however adopted Defendant’s spurious argument, see ECF No. 41 at 9;

ECF No. 41-1 at ⁋ 4, that the underlying record was not in the public domain

because it was unavailable on the public docket and held

Defendants’

withholding of the document was therefore proper. ECF. No. 49 at 8 n.1. That

ruling was clearly erroneous given the record before this Court.

The touchstone for determining whether a trial record is public is not

whether it can be downloaded from the electronic case file. There is a longstanding common-law right of access to judicial records which predates the

Constitution and has been recognized by the Circuit Court of Appeals for the

District of Columbia since “at least 1894.” In re Leopold, 964 F.3d 1121, 1127

(D.C. Cir. 2020). Any documents filed with the Court which play a role in the

adjudicatory process are considered “judicial records.” Id. at 1128. This

includes exhibits. See, e.g., United States v. Jackson, 2021 WL 1026127, at *45 (D.D.C. March 17, 2021) (finding video exhibits in criminal case to be judicial

records).

2 As this Court noted, there are three ways in which the government can rebut this

claim: by showing that the relevant record has since been “destroyed, placed under

seal, or otherwise removed from the public domain.” Cottone, 193 F.3d at 556. None

of those circumstances apply here.

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This right is also reflected in Rule 5.4(a) of the Local Rules of the

Southern District of Florida which explicitly states that “[u]nless otherwise

provided by law, Court rule, or Court order…court filings are matters of public

record.” Here there is no law, Court rule, or Court order excepting the trial

exhibit from this rule. Defendant has never sought to seal the exhibit or

otherwise restrict it from public access. The fact that it cannot be downloaded

on ECF simply has no bearing on whether it should be considered public.

Moreover, this Court’s reliance on the inability to electronically access

the exhibit as proof it is not in the public domain ignores the very ECF rules

which controlled the filings at the time of Plaintiff’s trial. Section 5 of the

version

the

Case

Management

Electronic

Case

Filing

CM/ECF

Administrative Procedures for the Southern District of Florida which was in

effect during Plaintiff’s trial specifically covered “Documents That Cannot Be

Filed Electronically.” See attached exhibit at 17. This section included

Procedure 5I which clearly stated, “Exhibits offered or admitted at trial will

not be filed electronically or conventionally unless so ordered by the Court.” Id.

at 19. The lack of electronic access to exhibits in this case is thus merely a

vestige of a prior filing system not a rejection of the fundamental historical

right to access judicial records. This Court’s holding that the plea agreement

was not in the public domain was clearly erroneous.

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IV.

The Court erred in holding that there were no positive

indications of overlooked records.

In the course of its investigation of Mr. Troya’s capital case, the

government collected and generated numerous records. But not all of them

were written materials. Many were photographs and audio/video recordings.

Yet no such multi-media records were produced in response to Plaintiff’s FOIA

request, which clearly encompassed such items. 3

Plaintiff knows such agency records exist because Defendants produced

some of them to Mr. Troya in the context of his criminal proceeding. As Plaintiff

stated in her declaration:

I am in possession of over two hundred items comprising DVDs,

CDs, audio recordings, and photos that would be responsive to my

various requests of the Defendants. Not one of these items has

been acknowledged or produced in Defendants’ declarations or

Vaughn Indices.

ECF No. 21-1 (“Declaration of Barbara Kowal”) at ⁋ 23.

Plaintiff’s declaration constitutes “countervailing evidence” as to the

adequacy of the agency’s FOIA search. Founding Church of Scientology of

Washington D.C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979).

Specifically, the existence of these numerous photographs and audio/video

See ECF No. 21-2 at 4-5 (“For purposes of this request the terms ‘records,’

‘documents,’ and ‘files’ are intended to include … photographs, recordings (including

videotapes, audiotapes, CD’s, CD-Rom’s, or DVD’s or any other form of electronic

recordation)[.]”).

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recordings—which Defendants produced in a different proceeding—is a

“positive indication” that the agency overlooked responsive records in

conducting its search. See Oglesby v. United States Dep’t of the Army, 79 F.3d

1172, 1185 (D.C. Cir. 1996) (finding positive indications of overlooked records

based on the fact that agency had produced responsive records to a different

individual in a different proceeding); Founding Church of Scientology, 610 F.2d

at 834 (D.C. Cir. 1979) (distribution of responsive documents by the agency to

other agencies gave “rise to substantial doubts about the caliber of [the

agency’s] search endeavors”).

In their reply, Defendants offered the following terse answer:

Plaintiff’s speculation that other documents should exist—such as

DVDs, CD-Roms or audio recordings (Opp. at 21)—is insufficient

to raise a material question of fact with respect to the adequacy of

an agency’s search. Wilbur v. CIA, 355 F.2d 675, 678 (D.C. Cir.

2004) (“mere speculation that as yet uncovered documents might

exist, does not undermine the determination that the agency

conducted an adequate search for the requested records”).

ECF No. 26 at 8. 4

The premise of Defendants’ response, however, is mistaken. Plaintiff is

not engaged in “mere speculation” about “as yet uncovered documents.” These

4 Defendants’ citation to Wilbur v. CIA contained a typographical error. The correct

cite is 355 F.3d 675.

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photographs and recordings do, in fact, exist. 5 Notably, the agency never

actually refuted this point. Moreover,

in any FOIA request, the existence of responsive documents is

somewhat “speculative” until the agency has finished looking for

them. As the relevance of some records may be more speculative

than others, the proper inquiry is whether the requesting party

has established a sufficient predicate to justify searching for a

particular type of record. Here, the [agency] does not deny that

such a predicate exists, rendering its “speculation” claim

irrelevant.

Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 29 (D.C. Cir. 1998).

Nevertheless, this Court granted Defendant’s summary judgment

motion, reasoning the missing records were not necessarily indicative of an

inadequate FOIA search, but rather that the agency “may simply not have

them.” ECF No. 29 at 15. But on this record, that ruling was clearly erroneous.

None of the pleadings or declarations submitted by Defendants

affirmatively represent that which this Court’s ruling presumed—i.e., that the

agency is not in possession of photographs and audio/video recordings. In fact,

Plaintiff’s FOIA request stated that if the requested records “have been purged,

destroyed or lost, please send an official written response with your agency’s

record retention policy and procedures noting the date the records were

purged, destroyed or lost.” ECF No. 21-2 at 5. But the agency never sent such

5 In addition to her sworn declaration, Plaintiff also submitted the exhibit list from

Mr. Troya’s capital trial, which indicates the government itself introduced a number

of photographs and recordings into evidence. See ECF No. 44-2.

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a response. Nor did it ever make such a statement in any of the subsequent

litigation. 6

It is well settled that summary judgment “may be granted only if the

moving party proves that no substantial and material facts are in dispute and

that he is entitled to judgment as a matter of law.” Nat’l Cable Television Ass’n

v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1978) (footnotes omitted). Here,

Defendants plainly failed to carry that burden, and it was error for this Court

to grant summary judgment based on a material fact that is unsupported by

the record.

It is equally settled in federal procedural law that

[t]he party seeking summary judgment has the burden of showing

there is no genuine issue of material fact, even on issues where the

other party would have the burden of proof at trial, and even if the

opponent presents no conflicting evidentiary matter. The

inferences to be drawn from the underlying facts must be viewed

in the light most favorable to the party opposing the motion.

It should be noted that an agency’s generalized claims of destruction or nonpreservation cannot sustain summary judgment. See Campbell, 164 F.3d at 28;

Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 369 (D.C. Cir. 1980). See also ValenciaLucena v. U.S. Coast Guard, 180 F.3d 321, 328 (D.C. Cir. 1999) (rejecting agency’s

contention that summary judgment is appropriate since records such as the one

plaintiff requested are routinely destroyed after two years because the agency’s

manual contains exceptions to the routine destruction of documents, and “[f]rom the

bare record, we are unable to determine whether the requested [records] might fall

within these exceptions.”) Moreover, in the absence of such a representation, it should

ordinarily be presumed in the context of FOIA cases that an agency has complied

with its duties under federal law to properly maintain records. See Judicial Watch,

Inc. v. U.S. Dep’t of Justice, 319 F.Supp.3d 431, 437-38 (D. D.C. 2018).

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United States v. General Motors Corp., 518 F.2d 420, 441 (D.C. Cir. 1975)

(cleaned up). See also United States v. Diebold, 369 U.S. 654, 655 (1962). Yet

here, the Court’s ruling failed to follow these well-settled principles.

Specifically, the Court reasoned it was Plaintiff’s burden to “explain why, just

because she has [the missing records], the ATF must also have them such that

it could produce them in response to a FOIA request.” ECF No. 29 at 15

(emphasis in original). But that’s an erroneous application of the law,

especially on this record.

Plaintiff proffered a sworn declaration, as well as a corroborative exhibit

(ECF No. 44-2), demonstrating that the relevant photographs and recordings

exist, and that Defendants previously produced some of these items.

Conversely, Defendants neither disputed the existence of the records or that

the agency previously produced them in a different proceeding. Nor did

Defendants affirmatively represent that the agency is no longer in possession

of these records.

Viewed in the light most favorable to the party opposing the motion for

summary judgment, the inference to be drawn from these facts is that the

agency is in possession of the records such that it could produce them in

response to a FOIA request. At the very least, “[a] factual question thus

persists, and it was inappropriate for the District Court to undertake to resolve

it at the stage of summary judgment.” Weisberg v. U.S. Dep’t of Justice, 627

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F.2d 365, 369 (D.C. Cir. 1980) (rejecting agency’s claim that requested record

was no longer in FBI’s possession).

In short, although this Court’s “deduction was hardly illogical,” it “was

not inexorably required,” and Plaintiff “should have been the beneficiary of the

inference more favorable to [her] that … the [requested records are] somewhere

in [agency] files.” Weisberg, 627 F.2d at 369-70. Moreover, “[s]ince the

Department did not show positively that the primary facts are not susceptible

to this interpretation, it was not entitled to summary judgment.” Id. at 370.

Respectfully, the cases upon which the Court relied to resolve this issue,

see ECF No. 29 at 15, are inapposite. In Concepcion v. FBI, 606 F. Supp. 2d 14,

30 (D. D.C. 2009), the court found the plaintiff was engaged in “speculation as

to the existence of additional records” and made “[unsupported] allegations of

agency bad faith.” Here, Plaintiff is not speculating; she has proffered both a

declaration and an exhibit list from the original trial that corroborates the

existence of additional records. Similarly, in Baker & Hostetler LLP v. U.S.

Dep’t of Com., 473 F.3d 312, 318 (D.C. Cir. 2006), 7 the plaintiff asserted that

the agency’s “failure to identify any responsive documents from certain highlevel officials” showed the inadequacy of the agency’s search. But, unlike Ms.

Kowal, the plaintiff there never proffered any evidence to demonstrate that

7 The Court’s Memorandum Opinion contains a typographical error and misstates

this citation as 472 F.3d 312.

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such documents actually existed. As the Baker court noted, that “assertion”

was “mere speculation.” Id.

In Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir.

2003), the plaintiff challenged the adequacy of the agency’s search based on its

failure to disclose a single report. But as the court noted, “it is long settled that

the failure of an agency to turn up one specific document in its search does not

alone render a search inadequate.” Id. (emphasis added). Here, the dispute is

not over a lone record; the agency failed to turn up hundreds of items.

Additionally, Defendants offer no plausible explanation about how so many

records might have been “accidentally lost or destroyed.” Id.

Finally, Plaintiff respectfully disagrees with this Court’s interpretation

of Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir. 1999). The

Court concluded that case is distinguishable because Plaintiff “has not shown

that the ATF overlooked records here in the way that the Coast Guard did in

that case. … The issue was not that the Coast Guard’s search missed certain

documents, but that the design of the search ignored a location likely to contain

them.” ECF No. 29 at 15 n.12. But Valencia-Lucena does not stand for the

narrow proposition that the only way to establish positive indications of

overlooked records is to identify additional locations to be searched. In fact,

that opinion reaffirmed the broader holding articulated in Oglesby and

Founding Church of Scientology that “if a review of the record raises

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substantial doubt, particularly in view of well-defined requests and positive

indication of overlooked materials, summary judgment is inappropriate.” 180

F.3d at 326 (internal citations and quotation marks omitted). Indeed, the

dispositive fact in each of those cases that was a positive sign of overlooked

records is also present here: the agency produced the requested records to

others on a separate occasion. Moreover, the sheer volume of records that are

known to exist, and which the agency failed to turn up, gives “rise to

substantial doubts about the caliber of [its] search endeavors.” Founding

Church of Scientology, 610 F.2d at 834.

Defendants were not entitled to summary judgment on this record.

Accordingly, Plaintiff respectfully requests the judgment be altered or

amended, and that Defendants be ordered to conduct a proper search for

photographic and audio/video recordings responsive to Plaintiff’s FOIA

request.

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CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Motion

to Alter or Amend be granted.

Dated:

October 27, 2021

Respectfully Submitted,

/s/ D. Todd Doss

D. TODD DOSS, ESQ.

Assistant Federal Defender

Federal Defender’s Office, MDFL

201 South Orange Ave., Ste. 300

Orlando, FL 32801

Tele: 407-648-6338

Email: todd doss@fd.org

Florida Bar No. 0810384

Counsel for Barbara Kowal

CERTIFICATE OF SERVICE

I CERTIFY the foregoing was electronically filed with the Clerk of Court

using the CM/ECF system that will automatically send a notice of electronic

filing to counsel of record this 27th day of October 2021.

/s/ D. Todd Doss

D. TODD DOSS, ESQ.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.