UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_________________________________________ 

 ) 

EUGENE A. FISCHER, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Civil Action No. 07-2037 (ESH) 

 ) 

U.S. DEPARTMENT OF JUSTICE, ) 

 ) 

 Defendant. ) 

_________________________________________ )

MEMORANDUM OPINION

 Plaintiff, proceeding pro se, has brought this action under the Freedom of Information 

Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, to compel disclosure by the 

Federal Bureau of Investigation (“FBI”) of records regarding his criminal case.1 The FBI has 

produced some responsive documents, and defendant now moves for partial summary judgment 

with respect to those disclosures. For the reasons set forth below, the Court will grant 

defendant’s motion. 

BACKGROUND 

This case originated with plaintiff’s FOIA/Privacy Act request submitted to the FBI’s 

Springfield, Illinois Field Office (“SIFO”) in January 1995 for records concerning himself and 

third parties connected to his 1988 criminal case in the U.S. District Court for the Southern 

District of Illinois. Plaintiff was convicted in that jurisdiction of engaging in a continuing 

criminal enterprise involving the importation of large amounts of marijuana into the United 

 

1

 Plaintiff originally sued the Department of Justice (“DOJ”), the FBI, and the Office of 

Information and Privacy (“OIP”). Because the FBI and OIP are both components of DOJ, the 

Court substituted DOJ as the sole defendant. See Fischer v. FBI, No. 07-2037, 2008 U.S. Dist. 

LEXIS 41603, at *1 (D.D.C. May 29, 2008). 
2

States. (See Declaration of David M. Hardy, filed July 17, 2008 [“Second Hardy Decl.”] ¶ 5.)2 

Many of the facts surrounding plaintiff’s prior attempts to obtain records are set forth in this 

Court’s earlier opinion denying defendant’s motion to dismiss or, in the alternative, motion for 

summary judgment. See Fischer v. FBI, No. 07-2037, 2008 U.S. Dist. LEXIS 41603 (D.D.C. 

May 29, 2008). Those facts will not be repeated here. Rather, for purposes of this opinion, the 

Court notes only that after initially affirming the FBI’s decision to withhold all records 

responsive to plaintiff’s request in December 1996, the Justice Department’s Office of 

Information and Privacy (“OIP”) reversed itself in December 2006, thereby prompting the FBI’s 

most recent records search and plaintiff’s appeal. 

Search of FBI Headquarters Records. Following OIP’s remand of plaintiff’s request for 

further processing, the FBI conducted a search of FBI headquarters (“FBIHQ”). The search 

yielded three FBI main files: 190-HQ-1200038, 281B-SI-45838, and 90A-PH-73768, from 

which the FBI identified approximately 580 pages that were potentially responsive to plaintiff’s 

request. (See Second Hardy Decl. ¶¶ 17, 32.) After reviewing these records, however, the FBI 

determined that only 40 pages actually pertained to plaintiff and of these pages, it released 37 

pages, including 15 pages in full and 22 pages redacted pursuant to Privacy Act Exemption (j)(2) 

and FOIA Exemptions 2, 6, 7(C), and 7(D). (Id. ¶ 4; Third Declaration of David M. Hardy 

[“Third Hardy Decl.”] ¶ 4 & n.1.) The remaining three pages were withheld in full pursuant to 

the same exemptions. (Id.) Of the 40 pages deemed responsive by the FBI, 11 were contained in 

 

2

 David M. Hardy is Section Chief of the Record/Information Dissemination Section, Records 

Management Division, at FBI Headquarters. His initial Declaration was attached to defendant’s 

prior motion to dismiss or, in the alternative, motion for summary judgment; his Second 

Declaration is attached to defendant’s motion for summary judgment; and his Third Declaration 

is attached to defendant’s reply. Defendant also filed a Fourth Declaration by Hardy as a 

separate document in this proceeding and a Fifth Hardy Declaration as an attachment to its 

motion to stay proceedings and for disclosure schedule. 
3

file 281B-SI-45838 and the remaining 29 pages were contained in files 190-HQ-1200038 and 

90A-PH-73768. (Third Hardy Decl. ¶ 5.) The remainder of the 580 pages initially identified by 

the FBI as potentially responsive to plaintiff’s request did not pertain to plaintiff and were 

therefore deemed “out of scope” of plaintiff’s request.3

 (Id.; Second Hardy Decl. ¶ 17 n.5.) 

Search of SIFO Records. Although plaintiff had submitted his FOIA/Privacy Act request 

to SIFO, that office’s records were not searched following the remand by OIP because, due to an 

administrative coding error, the office of origin for plaintiff’s request previously had been 

designated as FBIHQ and not SIFO.4 (See Fourth Declaration of David M. Hardy [“Fourth 

Hardy Decl.”] ¶ 5.) Therefore, FBI personnel performing the search were unaware that the 

original request had been made to SIFO. (Id. ¶ 6.) Upon discovery of this error, FBI personnel 

searched for potentially responsive SIFO files and determined that FBI main file 281B-SI-45838 

contained many records in the SIFO portion of the file that had not previously been reviewed or 

processed.5 (See id. ¶¶ 7-8.) Upon review, the FBI identified approximately 1,804 pages in the 

SIFO portion of the file that were responsive to plaintiff’s request. (See Fifth Declaration of 

 

3

 The bulk of the documents identified as potentially responsive were contained in file 281B-SI45838, a file concerning multiple subjects that consisted of approximately 541 pages. (Third 

Hardy Decl. ¶ 5.) When processing a multiple subject file, only those documents that pertain to 

the person about whom the request has been made are processed; the FBI considers documents 

pertaining to non-requesting subjects “out of scope” and will not process such documents in any 

event absent a Privacy Act waiver or proof of death. (Second Hardy Decl. ¶ 17 n.5.) When the 

FBI informed plaintiff that there were approximately 580 responsive pages, it had yet to review 

the file and eliminate documents that were non-responsive to plaintiff’s request. (Id. ¶¶ 17 n.5, 

33; Third Hardy Decl. ¶ 5.) Although the other two files were not multi-subject files, 10 pages 

from these files were also deemed non-responsive. (See Third Hardy Decl. ¶ 5.) 

4

 While plaintiff filed his first FOIA/Privacy Act request in January 1995, he filed a substantially 

duplicative request in August 1996. The FBI merged both requests into a single FOIPA Request 

Number 414039. When doing so, however, the office of origin for the request was inadvertently 

designated as FBIHQ instead of SIFO. (Fourth Hardy Decl. ¶ 5.) 

5

 The unreviewed portion of the file consisted of 58 main volumes, 77 1A volumes, and two 

subfiles - - 281B-SI-45838-CCC and 281B-SI45838-ZZZ. (See Fourth Hardy Decl. ¶ 9.) 
4

David M. Hardy [“Fifth Hardy Decl.”] ¶ 7.) In order to give the FBI time to review and process 

these records, defendant has requested a stay of these proceedings until March 2, 2009.6

Search of Public Source Records in SIFO Files. Pursuant to plaintiff’s request, SIFO 

also conducted a search for public source information.7 This search yielded approximately 300 

pages of public source material contained in a sub-file of the 281B-SI-45838 file. (Third Hardy 

Decl. ¶ 6 and Ex. A thereto.) The FBI released 81 pages of this material to plaintiff in January 

1997, with the names and identifying information of FBI Special Agents and FBI support 

employees redacted pursuant to FOIA Exemptions 6 and 7(C), but declined to release any 

additional pages on the basis that other subjects of the investigation remained at large.8

 (Id. and 

Exs. B-C.) During the pendency of this litigation, SIFO conducted a new search for public 

source material. (Id. at ¶ 7 and Ex. D.) This time, SIFO located approximately 278 pages in the 

281B-SI-45838 sub-file. (Id.) Of these pages, 154 pages did not pertain to plaintiff, and 40 

pages were duplicates of the 81 pages previously released. (Id.) Therefore, on October 24, 

2008, the FBI released an additional 84 pages of public source material that it had withheld in 

1997 due to the then-pending investigation, once again withholding pursuant to FOIA 

Exemptions 6 and 7(C) the names and identifying information of FBI Special Agents and FBI 

support employees as well as those of third parties merely mentioned in the records. (Id.) It 

appears that the newspaper articles and other public source documents were not redacted; rather, 

names and identifying information of FBI personnel and third parties were removed from 

 

6

 By separate Order, the Court will grant this motion. 

7

 Public source material comprises information that is publicly available, such as newspaper 

clippings, press releases, and indictments. (Def.’s Reply at 4 n.7.) 

8

 These 81 pages were in addition to the 580 pages initially identified as potentially responsive to 

plaintiff’s request. (Third Hardy Decl. ¶ 6.) While the FBI initially relied only on Exemption 

7(C), it now also relies on Exemption 6. 
5

notations made by agency personnel in the margins around the public source material. (See id.

Ex. D.) 

Because additional SIFO records remain to be processed, the only issues before the Court 

at this time are whether, as defendant claims, it has disclosed all responsive, non-exempt records 

located in FBIHQ’s files and all responsive, non-exempt public source records in SIFO’s files. 

ANALYSIS 

I. Summary Judgment Standard 

In a FOIA case, summary judgment may be granted to the government if “the agency 

proves that it has fully discharged its obligations under the FOIA, after the underlying facts and 

the inferences to be drawn from them are construed in the light most favorable to the FOIA 

requester.” Greenberg v. U.S. Dep’t of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998); see Fed. 

R. Civ. P. 56(c). The Court may award summary judgment based solely on the information 

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

justifications for nondisclosure with reasonably specific detail, demonstrate that the information 

withheld logically falls within the claimed exemption, and are not controverted by either contrary 

evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981). An agency must prove that “each document that falls within 

the class requested either has been produced, is unidentifiable, or is wholly exempt from the 

Act’s inspection requirements.” Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal 

citation and quotation omitted). Review of the agency’s denial of a FOIA request is de novo, and 

the agency “bears the burden of establishing the applicability of the claimed exemption.” 

Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). 
6

II. Adequacy of the Search 

 Plaintiff challenges the adequacy of the FBI’s search in light of the agency’s failure to 

locate more records. “An agency fulfills its obligations under FOIA if it can demonstrate beyond 

material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” 

Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. 

Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). The agency must demonstrate 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 the Army, 

920 F.2d 57, 68 (D.C. Cir. 1990). To meet this burden, the agency may submit nonconclusory 

affidavits or declarations that explain in reasonable detail the scope and method of the agency’s 

search. Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). Such affidavits or 

declarations “are accorded a presumption of good faith, which cannot be rebutted by ‘purely 

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

Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. 

CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). 

 Defendant submits the Second Declaration of David Hardy to demonstrate the adequacy 

of the FBI’s search. Hardy’s declaration is sufficiently detailed to enable the Court to conclude 

that the agency’s search of FBIHQ’s records was adequate. As Hardy explains, in processing 

FOIA/Privacy Act requests, the agency begins by searching its Central Records System (“CRS”), 

a system that includes records of “administrative, applicant, criminal, personnel, and other files 

compiled for law enforcement purposes.” (Second Hardy Decl. ¶ 21.) This search located three 

responsive FBI main files, but no responsive cross-references. (Id. ¶¶ 32, 34.). The FBI also 

searched its Electronic Surveillance (“ELSUR”) indices, a separate system of records that 
7

includes the names of individuals whose electronic and/or voice communications have been 

intercepted. (Id. ¶¶ 27-28.) The FBI’s search of the ELSUR indices failed to locate any 

responsive records. (Id. ¶ 34.) 

Plaintiff raises no specific challenge to the FBI’s search methodology, but rather he 

questions the adequacy of the FBI’s search based on the agency’s failure to locate additional 

records that he believes the agency should have in its possession. However, “the adequacy of a 

FOIA search is generally determined not by the fruits of the search, but by the appropriateness of 

the methods used to carry out the search. . . . After all, particular documents may have been 

accidentally lost or destroyed, or a reasonable and thorough search may have missed them.” 

Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). Moreover, 

although an agency may not limit its search to one or more places if there are additional sources 

that are likely to turn up the information requested, Valencia-Lucena, 180 F.3d at 326, the FBI in 

this case has conceded that additional responsive records exist in SIFO’s files and is currently 

processing them in order to produce all nonexempt material. SIFO is the only field office that 

plaintiff requested be searched, and it is the location where responsive documents were 

reasonably likely to exist since this office is the office of origin for the FBI’s investigation of 

plaintiff.9

 

9

 A FOIA request must generally be made in accordance with an agency’s “published rules 

stating the time, place, fees (if any), and procedures to be followed . . . .” 5 U.S.C. § 

552(a)(3)(A). A request for records maintained by a particular FBI field office must be 

submitted directly to that field office. 28 C.F.R. §§ 16.3(a), 16.41(a). Accordingly, the FBI is 

not obligated to undertake a search of its field offices’ records when a requester does not submit 

his request there. See Ray v. FBI, 441 F. Supp. 2d 27, 32 (D.D.C. 2006). 
8

Plaintiff has failed to rebut the FBI’s showing of a good faith search. Accordingly, the 

Court finds that the FBI has demonstrated that FBIHQ conducted an adequate search.10

III. Need for a Vaughn Index 

Plaintiff also contends that defendant failed to comply with the Court’s Order to provide 

a Vaughn index. In this case, defendant filed two declarations of David M. Hardy, which include 

redacted copies of the 37 pages of FBIHQ records and the 165 pages of SIFO public source 

records released to plaintiff. (See Second Hardy Decl. and Third Hardy Decl.) Listed next to 

each deletion are codes that indicate the FOIA exemptions being claimed and the nature of the 

information withheld.11 (See Second Hardy Decl. ¶¶ 36-37.) Moreover, in the case of the three 

pages of FBIHQ records withheld in their entirety, the codes are included within the text of the 

Second Hardy Declaration. The Hardy declarations include indices that explain the meanings of 

each code. (See id. ¶ 37; Third Hardy Decl. ¶10.) The D.C. Circuit has approved the use of such 

coded indices. See Keys v. U.S. Dep’t of Justice, 830 F.2d 337, 349-50 (D.C. Cir. 1987). The 

Hardy declarations also discuss in detail the types of information that were redacted pursuant to 

each exemption. These declarations and the coded indices and associated redacted pages of 

disclosed records are adequate to inform plaintiff of the nature of the information withheld and 

the reasons therefore and to permit the Court to determine the applicability of each exemption 

 

10 Because defendant has only recently discovered that additional SIFO records remain to be 

processed, the Court cannot at this time rule on the adequacy of SIFO’s search for records. 

Accordingly, it is expected that defendant will provide in its summary judgment motion 

regarding the SIFO documents an affidavit that details the scope and method of SIFO’s search 

for records, including its search for public source information. 

11 These codes were not included on approximately half of the public source records because 

only the names and identifying information of FBI Special Agents and support employees were 

redacted pursuant to FOIA Exemptions 6 and 7(C). (See Third Hardy Decl. ¶ 10 n.3.) 
9

claimed.12 Any more specificity would result in disclosure of the very information withheld. 

Keys, 830 F.2d at 350. Accordingly, defendant’s index is sufficient. 

IV. Segregability 

Plaintiff also challenges the FBI’s compliance with the requirement that all “reasonably 

segregable” portions of records be disclosed. See 5 U.S.C. § 552(b). FOIA requires that “even if 

some materials from the requested record are exempt from disclosure, any ‘reasonably 

segregable’ information from those documents must be disclosed after redaction of the exempt 

information unless the [non-]exempt portions are ‘inextricably intertwined with exempt 

portions.’” Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) 

(quoting 5 U.S.C. § 552(b) and Mead Data Cent., Inc. v. Dep’t of the Air Force, 566 F.2d 242, 

260 (D.C. Cir. 1977)). 

As stated above, defendant has released 37 of 40 pages of responsive FBIHQ records and 

all 165 pages of responsive SIFO records, including an explanation for each redaction in most 

cases on the face of each page. Moreover, the context, along with the claimed exemptions, 

adequately describes the content of the three withheld pages. With respect to the FBIHQ 

records, Hardy avers that 

[a]ll documents were processed to achieve maximum disclosure consistent with 

the access provisions of the Privacy Act and the FOIA. Every effort was made to 

provide plaintiff with all material in the public domain and with all reasonably 

segregable portions of releasable material. No reasonably segregable, nonexempt 

portions were withheld from plaintiff. To further describe the information 

withheld could identify the very material that the FBI seeks to protect. 

 

12 Moreover, additional information about the content of the withheld pages can be discerned 

from their location within the disclosed material. For example, pages 29 and 30 are clearly the 

second and third pages of a teletype regarding the FBI’s criminal investigation into narcotics 

trafficking by plaintiff and others, while page 39 is clearly the third page of a March 2, 1994 

memorandum regarding plaintiff’s alleged escape attempt from a federal institution. 
10

(Second Hardy Decl. ¶ 35.) With respect to the public source records, Hardy similarly states that 

“[t]he FBI has processed and released all segregable information . . . .” (Third Hardy Decl. ¶ 

22.) Having reviewed the Hardy declarations and the redacted copies of the records, the Court 

concludes that the FBI has met its burden to disclose all reasonably segregable material. 

V. Exemptions 

Plaintiff offers an unspecified challenge to “the sufficiency of the justifications for 

withholding materials” (Pl.’s Opp’n at 2), and he raises specific challenges with respect to 

certain exemptions, each of which will be addressed below. 

A. Privacy Act Exemption (j)(2) 

Section (j)(2) of the Privacy Act permits an agency to exempt from disclosure criminal 

investigative records systems, provided that the principal function of the agency is the 

“enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to 

apprehend criminals . . . .” 5 U.S.C. § 552a(j)(2). The Department of Justice, of which the FBI 

is a component, has exempted the FBI’s CRS from disclosure under 28 C.F.R. § 16.96. 

Defendant asserts that 19 of the 40 FBIHQ pages found to be responsive to plaintiff’s 

FOIA/Privacy Act request are exempt from disclosure pursuant to Exemption (j)(2). These 

records are part of the FBI’s CRS and concern three criminal investigations of plaintiff, 

including two instances where the FBI investigated plaintiff’s alleged plot to escape from a 

federal prison, in violation of 18 U.S.C. § 751(a), and one in which the FBI participated in a 

multi-agency task force investigation of narcotics charges, in violation of 21 U.S.C. § 

841(a)(1).13 (Second Hardy Decl. ¶ 40.) Accordingly, these records clearly qualify as 

investigative records filed for law enforcement purposes and are therefore exempt from 

 

13 Defendant has also withheld an investigative file number pursuant to Exemption (j)(2). (See

Second Hardy Decl. Ex. T at 3; Def.’s Mot. for Summ. J. at 10 n.7.) 
11

disclosure under the Privacy Act.14 Moreover, with exceptions not relevant here, the Privacy Act 

only allows individuals to access records or information that pertain to the requestor. See 5 

U.S.C. § 552a(b). Since plaintiff’s request seeks information that does not relate to himself, this 

information has been properly withheld under the Act. 

Notwithstanding the exemption of some of the requested records from the disclosure 

provisions of the Privacy Act, plaintiff may still obtain disclosure if the records are not exempt 

from FOIA. See 5 U.S.C. § 552a(b)(2), (t)(2); Greentree v. U.S. Customs Serv., 674 F.2d 74 

(D.C. Cir. 1982). Accordingly, the Court will examine each of those claimed exemptions. 

B. FOIA Exemption 2 

FOIA Exemption 2 exempts from disclosure records “related solely to the internal 

personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). It applies to information 

“used for predominantly internal purposes.” Crooker v. Bureau of Alcohol, Tobacco, and 

Firearms, 670 F.2d 1051, 1074 (D.C. Cir. 1981). Once this “predominantly internal” test is met, 

the agency may withhold the material if it demonstrates that (1) “the material relates to trivial 

administrative matters of no genuine public interest” (so called “low 2” materials) or (2) the 

“disclosure may risk circumvention of agency regulation” (so called “high 2” materials). 

Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992). 

The FBI invoked Exemption 2 to protect from disclosure two telephone numbers of FBI 

Special Agents and one permanent source symbol number that was assigned to a cooperating 

 

14 While plaintiff disputes the FBI’s claim that he plotted to escape from prison, he does not 

dispute the fact that the agency conducted an investigation of this plot. Thus, regardless of the 

truth of the matter, this exemption applies. 
12

witness in order to administratively conceal his or her identity.15 (Second Hardy Decl. ¶ 44.) 

Clearly, these telephone numbers relate solely to the FBI’s internal practices and are of no 

genuine public interest. See, e.g., Ray v. FBI, 441 F. Supp. 2d 27, 33 (D.D.C. 2006) (upholding 

the withholding of an FBI telephone number pursuant to Exemption 2). Moreover, according to 

Hardy, disclosure of the source symbol number “would reveal information as to the strength, 

breadth and scope of the informant program” and if repeatedly released to the public in various 

documents, could be used to determine the identity of the source. (Second Hardy Decl. ¶ 44.) 

Plaintiff has offered no argument to dispute these assertions. In fact, the D.C. Circuit has 

specifically found such informant codes to fall within the ambit of Exemption 2. See Lesar v. 

U.S. Dep’t of Justice, 636 F.2d 472, 485-86 (D.C. Cir. 1980). Accordingly, because disclosure 

of source symbol numbers could compromise the FBI’s use of informants and because the public 

has no legitimate interest in gaining such information, the Court finds that defendant has 

properly withheld this information under Exemption 2. 

C. Exemption 7(C) 

FOIA Exemption 7(C) protects from disclosure “records or information compiled for law 

enforcement purposes” to the extent that disclosure “could reasonably be expected to constitute 

an unwarranted invasion of personal privacy.”16 5 U.S.C. § 552(b)(7)(C). To determine whether 

 

15 The FBI also invoked FOIA Exemption 7(D) to protect the source symbol number. However,

because the Court concludes that the information was properly withheld under Exemption 2, it 

need not address defendant’s claim that the information was also properly withheld under 

Exemption 7(D). 

16 The FBI clearly has satisfied Exemption 7(C)’s threshold requirement that the information 

withheld has been compiled for law enforcement purposes. The Hardy declarations make clear 

that the information that was withheld is related to criminal investigations of plaintiff’s 

involvement in the importation of narcotics and of his alleged attempt to escape from a federal 

prison, both of which are types of law enforcement investigations over which the FBI has 

jurisdiction. (See Second Hardy Decl. ¶ 55.) See also Campbell v. U.S. Dep’t of Justice, 164 

F.3d 20, 32 (D.C. Cir. 1998) (Where an agency specializes in law enforcement, its declarations 
13

Exemption 7(C) applies, the Court must “balance the privacy interests that would be 

compromised by disclosure against the public interest in release of the requested information.” 

Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992). Where a legitimate 

privacy interest exists, the requester must “(1) show that the public interest sought to be 

advanced is a significant one, an interest more specific than having the information for its own 

sake, and (2) show the information is likely to advance that interest.” Boyd v. Criminal Div. of 

the U.S. Dep’t of Justice, 475 F.3d 381, 387 (D.C. Cir. 2007) (quoting Nat’l Archives & Records 

Admin. v. Favish, 541 U.S. 157, 172 (2004)) (internal quotation marks omitted). Moreover, “the 

only public interest relevant for purposes of Exemption 7(C) is one that focuses on the citizens’ 

right to be informed about what their government is up to.” U.S. Dep’t of Justice v. Reporters 

Comm. For Freedom of Press, 489 U.S. 749, 773 (1989) (internal quotation marks omitted). 

The FBI invoked Exemption 7(C) to protect the following information pertaining to the 

criminal investigations of plaintiff: (1) the names and identifying information of FBI Special 

Agents and support personnel; (2) the names and identifying information of third parties merely 

mentioned, as well as of third parties of investigative interest to the FBI or other law 

enforcement agencies; and (3) the identities of and information provided by Cooperative 

Witnesses.17 (Second Hardy Decl. ¶¶ 47, 49-51, 53, 59, 61-63, 65; Third Hardy Decl. ¶¶ 10 n.3, 

17, 20.) 

 

“must establish a rational nexus between the investigation and one of the agency’s law 

enforcement duties, and a connection between an individual or incident and possible security risk 

or violation of federal law.” (citation and internal quotation marks omitted).) 

17 This information includes such data as social security numbers, telephone numbers and 

extensions, addresses, license plate numbers and registration information, dates of birth, aliases, 

career and job titles, FBI arrest numbers, police department numbers, fingerprint classifications, 

and personal characteristics. (Second Hardy Decl. ¶¶ 47, 50-51, 59, 62-63; Third Hardy Decl. ¶¶ 

17, 20.) Any information that could identify Cooperative Witnesses, including dates and places 

where they had been, was also withheld. (Second Hardy Decl. ¶¶ 53, 65.) Moreover, with 
14

The D.C. Circuit has consistently held that Exemption 7(C) protects the privacy interests 

of all persons mentioned in law enforcement records, including investigators, suspects, 

witnesses, and informants. See Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 

2003) (citing cases). Accordingly, the Court has adopted a “categorical rule permitting an 

agency to withhold information identifying private citizens mentioned in law enforcement 

records, unless disclosure is ‘necessary in order to confirm or refute compelling evidence that the 

agency is engaged in illegal activity.’” Id. (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 

(D.C. Cir. 1991)). 

In this case, plaintiff claims a public interest in proving his innocence, which he claims 

weighs in favor of disclosure. However, “it is well established that an individual’s personal 

interest in challenging his criminal conviction is not a public interest under FOIA because it 

‘reveals little or nothing about an agency’s own conduct.’” Willis v. U.S. Dep’t of Justice, 581 F. 

Supp. 2d 57, 76 (D.D.C. 2008) (quoting Reporters Comm., 489 U.S. at 773). Moreover, plaintiff 

has not provided any evidence that the FBI engaged in any illegal activity.18 Although the D.C. 

Circuit has held that “the privacy interest in nondisclosure of identifying information may be 

diminished where the individual is deceased,” Schrecker, 349 F.3d at 661 (quoting SafeCard, 

926 F.2d at 1206), this factor is irrelevant where, as here, plaintiff has not identified any public 

interest in disclosure. “[S]omething, even a modest privacy interest, outweighs nothing every 

time.” Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989). 

 

respect to newspaper articles released as public source material, similar information contained in 

notations surrounding the articles was redacted. (See Third Hardy Decl. Ex. D.) Because the 

Court concludes that the information was properly withheld under Exemption 7(C), it need not 

address defendant’s claim that the information was also properly withheld under Exemption 6. 

18 Plaintiff’s speculative allegations regarding agency mistakes and bad faith do not constitute 

evidence of illegal activity nor do they raise an inference that the government is improperly 

withholding information. 
15

Therefore, the Court finds that the privacy interests in withholding the identifying information 

outweigh the public interest in disclosure and that disclosure of this information would constitute 

an unwarranted invasion of personal privacy within the meaning of Exemption 7(C). 

For this same reason, the FBI was justified in refusing to address plaintiff’s request for 

third-party information. In addition to information about himself, plaintiff requested information 

regarding various third parties involved in his criminal trial, including individuals who were 

cooperating witnesses. (See Second Hardy Decl. ¶ 7.) If a third party is the target of a FOIA 

request, the agency to which the request is submitted may provide a “Glomar” response, refusing 

to confirm or deny the existence of records or information responsive to the request on the 

ground that even acknowledging the existence of responsive records constitutes an unwarranted 

invasion of the targeted individual’s personal privacy. Phillippi v. CIA, 546 F.2d 1009, 1014-15 

(D.C. Cir. 1976) (CIA refused to confirm or deny existence of secret vessel, the “Hughes Glomar 

Explorer”); see Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 893 (D.C. Cir. 1995). 

Citing such concerns, the FBI neither confirmed nor denied the existence of records pertaining to 

individuals about whom plaintiff had requested information. (See Second Hardy Decl. ¶ 7 n.1.) 

Given the nature of the information plaintiff sought, there can be no doubt that this information 

constitutes law enforcement records. Thus, the FBI’s Glomar response was proper. See, e.g., 

Martin v. Dep’t of Justice, 488 F.3d 446 (D.C. Cir. 2007) (upholding under Exemption 7(C) 

FBI’s Glomar response to plaintiff’s request for records that would show that a private citizen 

had previously been suspected of crime for which plaintiff had been convicted); Barbosa v. Drug 

Enforcement Admin., 541 F. Supp. 2d 108 (D.D.C. 2008) (upholding under Exemption 7(C) 

DEA’s Glomar response to plaintiff’s request for records about an alleged informant). 
16

Finally, plaintiff argues that the identities of FBI agents who participated in his 

prosecution are in the public domain because their names have been disclosed in newspaper 

articles, and, in any event, he knows who they are because “there were only two principle agents 

involved in [his] case.” (Pl.’s Amendment to Surreply at 2.) However, the fact that plaintiff may 

have deduced the identities of individuals whose names and identifying information have been 

withheld or that their identities have previously been disclosed does not diminish their privacy 

interests. See Fitzgibbon v. CIA, 911 F.2d 755, 768 (D.C. Cir. 1990); Weisberg v. U.S. Dep’t of 

Justice, 745 F.2d 1476, 1491 (D.C. Cir. 1984). Plaintiff has the burden of “pointing to specific 

information in the public domain that appears to duplicate that being withheld.” Davis v. U.S. 

Dep’t of Justice, 968 F.2d 1276, 1279 (quoting Afshar v. Dep’t of State, 702 F.2d 1125, 1130 

(D.C. Cir. 1983). Because plaintiff does not allege that the information withheld is identical to 

information available in the public domain, the FBI’s withholding of the identities of FBI agents 

and others was proper. 

D. Exemption 7(D) 

FOIA Exemption 7(D) protects from mandatory disclosure records or information 

compiled for law enforcement purposes (1) where disclosure “could reasonably be expected to 

disclose the identify of a confidential source, including a . . . foreign agency or authority . . . 

which furnished information on a confidential basis,” and (2) “in the case of a record or 

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

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

When invoking this exemption, an agency must show that an informant provided the information 

under an express or implied promise of confidentiality. U.S. Dep’t of Justice v. Landano, 508 

U.S. 165, 172 (1993). An agency demonstrates an express assurance by providing “probative 
17

evidence that the source did in fact receive an express grant of confidentiality.” Campbell v. U.S. 

Dep’t of Justice, 164 F.3d 20, 34 (D.C. Cir. 1998) (citation omitted). Such evidence may take a 

number of forms, including “notations on the face of a withheld document, the personal 

knowledge of an official familiar with the source, a statement by the source, or contemporaneous 

documents discussing practices or policies for dealing with the source or similarly situated 

sources.” Id. (citations omitted). An implied assurance may be inferred from evidence showing 

the circumstances surrounding the imparting of the information, including the nature of the 

criminal investigation and the informant’s relationship to the target. Computer Professionals for 

Social Responsibility v. U.S. Secret Serv., 72 F.3d 897, 905-06 (D.C. Cir. 1996). 

The FBI has invoked Exemption 7(D) to withhold the identity of a foreign authority that 

provided information to the FBI under an express grant of confidentiality and to withhold the 

names of and information provided by several Cooperative Witnesses under either an express or 

implied assurance of confidentiality.19 (See Second Hardy Decl. ¶¶ 68, 70-71.) In this case, 

Hardy provides nothing beyond a bare assertion that a foreign authority provided information to 

the FBI under an express assurance of confidentiality. While such a claim is insufficient to carry 

the FBI’s burden of presenting probative evidence that the source received an express grant, the 

Court nevertheless concludes that a promise of confidentiality may be inferred. The FBI 

withheld the identity of a foreign authority that provided information in connection with the 

FBI’s investigation of illegal, large scale narcotics trafficking. Given the necessarily close 

cooperation between the FBI and foreign law enforcement authorities, the Court concludes that 

an implied confidential relationship was established. 

 

19 While there appears to be some overlap in the information regarding Cooperative Witnesses 

that was withheld pursuant to Exemptions 7(C) and 7(D), this overlap does not appear to be 

complete. Accordingly, the Court addresses defendant’s assertion of both exemptions to protect 

Cooperative Witness information. 
18

Similarly, the Court finds a reasonable inference that information provided by 

Cooperative Witnesses was supplied under an implied promise of confidentiality. A Cooperative 

Witness is an “individual who meets the definition of a [Confidential Informant] who has agreed 

to testify in a proceeding as a defendant or potential witness.” (Second Hardy Decl. ¶ 71.) 

Accordingly, the FBI’s policy is to “protect the Cooperative Witness’s true identity from 

unauthorized disclosure to the same degree as that of a Confidential Informant.” (Id.) Such an 

individual may not be required to testify and, even if he or she does testify, that testimony may 

be limited to certain issues so that their role in providing other information to the FBI may not be 

publicly known. (Id. ¶ 72.) Because of the inherent risk of harm to such an individual, it is 

reasonable to infer that he or she would not agree to such an arrangement absent a promise of 

confidentiality. 

CONCLUSION 

 For the foregoing reasons, the Court will grant [16] defendant’s motion for summary 

judgment in part. A separate Order accompanies this Memorandum Opinion. 

 /s/ 

 ELLEN SEGAL HUVELLE 

 United States District Judge 

Date: January 26, 2009