UNITED STATE S DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

___________________________________ ) EUGENE A . FISCHER, ) ) Plaintiff , )

) v. ) Civil Action No. 07-2037 (ESH) ) U.S. DEPA RTMENT OF JUSTICE, ) ) Defendant. )

___________________________________ )

MEMORANDUM OPINION Plaintiff, proceedi ng pro se , has brought thi s action underthe Freedom of Inform ation Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act , 5 U.S.C. § 552a, to com pel discl osure by the Federal Bureau of Inves tigati on (“FBI”) of records regarding hi s criminal case. Defendant 1 produced some responsive documents from its search of FBI Headquarter s (“FBIHQ”), and the Court granted s umm ary judgment for defendant with respec t to those r ecords. Fischer v. Dep’t of Justic e , 596 F. Supp. 2d 34, 39-40 (D.D.C. 2009) (“Fischer II ”). Since the n, defendant has searched the FBI’s Springfield, I llinois Field Office (“SIFO”) for responsi ve documents and has produced addit ional rec ords to plai ntiff. Defendant now m oves for summ ary judgment with respect t o those discl osures. For the reasons setforth below, the Court wil l grant defendant ’s motion.

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

1 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-CV-2037, 2008 W L 2248711, at *1 n.1 (D.D.C. May 29, 2008).

1BACKGROUND

This case ar ises out of plai ntiff’s requests under FOIA and the Privac y Act for FBI records conc erning his 1988 c riminal convicti on in the United St ates Distr ict Court for the Southern Distr ict of Illi nois. He submitted successi ve requests to SIFO in 1995 and 1996, seeking to ac quire information that “ could help him to prove his a ctual innoc ence.” (Compl. ¶¶ 6-7; Fischer II

, 596 F. Supp. 2d at 40.) The detai ls of plainti ff’s prior atte mpts to obtain information and defendant’s respons es are setout in this Court’s pri or opinions i n Fischer v. FBI , No. 07-CV-2037, 2008 W L 2248711, at *1 n.1 (D.D.C. May 29, 2008) (“Fischer I ”), and Fischer II

, 592 F. Supp. 2d at 40-42, so only thos e facts essent ial to the Court’s rul ing on the instant motion will be recounted her e. After affirm ing the FBI’s dec ision to withhold all r ecords res ponsive to pla intiff’s request in 1996, OIP reverse d itself in 2006, pr ompting the FBI to renew its se arch for responsi ve records. Fischer II

, 596 F. Supp. 2d at 40. The FBI subsequently r eleased some records t o plainti ff and withheld others. (Compl. ¶¶ 13-14.) Dis puting both the adequacy of the sear ch and the decisi on to withhold certain rec ords under FOIA and Privac y Act exemptions, plainti ff sued to compel disclosure. (Id. ¶ 18.) Because the FBI disc overed thatit had mistakenly li mited its renewed sear ch to the records i n FBIHQ, even though plaintiff had direc ted his ori ginal reque st to SIFO, defendant moved f or a three -month stay of these proceedi ngs with regar d to responsi ve nonpublic SIFO records. ( SeeDef.’s Mot. to Stay Proce edings and for Discl. Sche d. [Dkt. 31].) On January 26, 2009, the Court grant ed the motion “to allow the [FBI] to com plete it s processi ng under [FOIA] of the recentl y-discover ed records l ocated at i ts Springfield, I llinois Field Office.” ( See Minute Order, Jan. 26, 2009.) Thatsame day, the Court issued it s ruling i n Fischer II , which was

2limited to all r esponsive, nonexempt public r ecords in SIFO’s fil es, but it di d not address

responsive non- public files, whic h the FBI was stil l processi ng. 592 F. Supp. 2d at 42. Since then, defendant ha s finished proces sing SIFO’s respons ive nonpublic r ecords, yielding 1,904 page s of relevant documents of which it has r eleased 1,615 page s to plaint iff. (Def.’s Mot., Sixth Decl . of David M. Hardy [“Sixth Hardy Decl.”] ¶ 4.) The non-disclos ed 2 portion comprises 248 pages withheld as dupl icates a nd 41 pages withheld pur suant to st atutory exemptions. (

Id. ) The disclos ed records a re made up of 1,108 partially re dacted pages a nd 597 fully releas ed pages. (

Id. ) The parti es have agree d, for the purpose of this l itigat ion, to a 464- page repres entative sample that incl udes, inter ali a , mem oranda, fax cover shee ts, copies of 3 checks, handwrit ten interview notes, photo l ineup notes, maps, telephone r ecords, and investiga tive reports. (Sixth Har dy Decl. ¶ 5.) Defendant ar gues that bec ause “the FBI has

David M. Hardy is Sect ion Chief of the Record/Information Dissemination Secti on, 2 Records Management Division, atFBIHQ. His initial Decl aration was a ttached t o defendant’s February 14, 2008 Moti on to Dismiss or, in the Alte rnative, M otion for Summ ary Judgment. Defendant has submitted several other decl arations by Hardy throughout this lit igation, at taching his sixth a nd most recent declar ation to the instantmotion. Defendant includes code s with each withhol ding to indic ate which FOIA exemptions are claimed and the nature of the information withheld, and the Sixt h Hardy Declarat ion includes an index that e xplains thos e codes. ( See Sixth Hardy Decl. ¶ 25.) The D.C. Circuit has approve d the use of such coded indi ces. See Keys v. Dep’t of Justice, 830 F.2d 337, 349-50 (D.C. Cir. 1987). Hardy’s si xth declar ation als o discusses i n detail t he types of information that were redacted pur suant to eac h exemption. The declarati ons and the coded i ndices are adequate to inform plaintiff of the nature of the information withheld and the reasons the refor and to permit the Court to det ermine the applicabi lity of each exemption clai med. A ccordingly, t he Sixth Hardy Declarat ion meets defendant’s index r equirements under Vaughn v. Rosen , 484 F.2d 820 (D.C. Cir. 1973). “Representat ive sampling is an appropr iate proc edure to te st an agency’ s FOIA 3 exemption claims when a large number of docum ents are i nvolved,” Bonner v. Dep’t of State , 928 F.2d 1148, 1151 (D.C. Cir. 1991), because it“allows the c ourt and the pa rties t o reduce a voluminous FOIA exem

ption case t o a manageable number of item s that can be evaluated individual ly through a Vaughn index or an in camera inspecti on. If the sample is well-chos en, a court can, with some confidence, ‘extrapolat e its concl usions from the representa tive sample to the large r group of withheld material s.’” Id. (quoting Fensterwald v. CIA , 443 F. Supp. 667, 669 (D.D.C. 1977)); see also Me eropol v. Mee se, 790 F.2d 942, 958 (D.C. Cir. 1986).

3conducted a re asonable search of agency recor ds, has discl osed all non- exempt responsive

records, and ha s not improperly withhel d any responsive records from plaintiff,” no genuine issue remains as to a ny material fact, and itis there fore entitl ed to summ ary judgment. (Def.’s Mot. for Summ ary J. in Part[“Def.’s Mot.”] at 2; see Fed. R. Civ. P. 56(c)(2).) 4

ANALY SIS I. STAND ARD OF RE VIEW The Court may grant a motion for summary judgm ent “if the ple adings, the di scovery and disclosur e materials on file, and a ny affidavits show that there is no genui ne issue as t o any material fact and thatthe movant is entitl ed to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating an abs ence of a genuine iss ue of material fact in dis pute. Celotex Corp. v. Catret t , 477 U.S. 317, 322 (1986). Factual as sertions in the moving party’s affidavit s may be accepted as true unless the oppos ing party submits his own affidavits or declar ations or doc umentary evidence to the contrary. Neal v. Kelly , 963 F.2d 453, 456 (D.C. Cir. 1992). “FOIA cases typica lly and appropr iately a re decided on motions for summ ary judgment.” Defenders of W

ildlif e v. U.S. Border Patrol

623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citations omitted). “In a FOIA case, summ ary judgment may be granted to the government if ‘the age ncy proves thatit has fully di scharged it s obligati ons under the FOIA, after the underlying fact s and the inferences to be drawn from them are construed in the li ght most favorable to the FOIA Because plaint iff is proceeding pro se , the Court iss ued a Fox/ Neal Order on December 4 14, 2009 to alertplainti ff that “the Court will accept as true any factual a sserti ons contained i n affidavits, declar ations or a ttachments submitted by the defendant i n support of a motion for summ ary judgment unless the pl aintiff submits affidavits, declar ations or doc umentary evidence showing that the defendant’s asse rtions ar e untrue.” ( See Order of Dec. 14, 2009 (citi ng Neal v. Kelly , 963 F.2d 453, 456 (D.C. Cir. 1992)) [Dkt. 51]; see infra note 6.)

4requester .’” Fischer II , 596 F. Supp. 2d at 42 (quoting Greenberg v. Dep’t of Treasury , 10 F. Supp. 2d 3, 11 (D.D.C. 1998)). The requestermay challenge such a showing by “set [ting] out specific facts showing agenuine issue for trial,” Fed. R. Civ. P. 56(e), that would permit a reasonable jury to find in hi s favor. Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987). However, agency affidavits “ are afforded a presumption of good faith,” and an adequat e affidavit “can be re butted only ‘ with evidence t hat the agenc y’s searc h was not made in good faith.’” Defenders of W

ildlif e v. Dep’t of I

nterior , 314 F. Supp. 2d 1, 8 (D.D.C. 2004) (quoting Trans Union LLC v. Fed. Trade Comm’n , 141 F. Supp. 2d 62, 69 (D.D.C. 2001)). In other words, a request er cannot r ebut the good faith pr esumption through “‘purel y speculati ve claims about the exi stence and di scoverabil ity of other documents.’” SafeCard Servs., Inc . v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, I nc. v. CIA , 692 F.2d 770, 771 (D.C. Cir. 1981)). But “if the sufficienc y of the agency’s ide ntificati on or retr ieval proc edure is genuinely in i ssue, summ ary judgment is not in or der.” Weisberg v . Dep’t of Just ice , 627 F.2d 365, 370 (D.C. Cir. 1980) (inte rnal quotat ion marks om itted)

. II. PRESUMPT ION OF GOOD FAITH Plaintiff argues t hat defendant’s pa st lapses in producing r equested information demonstrate a trac k record of bad faith tha t rebuts t he presumption of good faith that would ordinari ly attac h to the government’s affidavits . Plaintiff points t o delays in document production as evidence of bad faith, espe ciallydefendant’s failur e to abide by the statut ory deadlines for t imely action and the t en years tha t passed between his origi nal FOIA request and defendant’s change of it s disclosur e policie s that enabl ed the FBI to rel ease respons ive recor ds. (Pl.’s Response t o Def.’s Mot. [“Pl.’s Opp’n”] at 3-4.) The Court rejec ts plaint iff’s arguments that defendant’s fail ure to produce documents

5until afterit changed i ts discl osure polic ies, or unti l after li tigati on comm enced, evinces bad faith

or an inadequat e search. “[I]n view of the well- publicize d problems created by the . . . time limits for processing FOIA reque sts and appeal s, the [agency’s] delay a lone cannot be s aid to indicate an absence of good faith.” Goland v. CIA , 607 F.2d 339, 355 (D.C. Cir. 1978) (footnote omitted). Plaintiff also urge s a finding of bad faith because of incons istent r eports by the FBI of how m any responsive files had been found. ( See Pl.’s Opp’n at 4.) Notwithstanding pl aintiff’s point that“Hardy admitted that there was a mistake made . . . as to the number of [responsive] files” ( id. ), mistakes do not imply bad faith. In fact, the agency’s cooper ative behavi or of notifying the Court a nd plainti ff that it had discove red a mistake, if anything, shows good fait h. To be sure, defendant has notperformed its duties underFOIA perfectly, but err or-free performance is not requir ed. The partic ular laps es in defendant’s search for and produc tion of plainti ff’s requested rec ords do not ri se to the l evel of rebutti ng the presumption of good faith that att aches to st atements made by agency off icials under penalty of perjury. III. ADEQUAC Y OF SEARC H Plaintiff contends t hat the FBI failed t o conduct a rea sonable and good faith s earch for responsive doc uments. Given the lack of any specific showing of bad faith, t he Court is not persuaded. An agency from which information has been reque sted must undertake a se arch thatis “reasonabl y calculat ed to uncover al l releva nt documents.” Weisberg v . Dep’t of Just ice , 705 F.2d 1344, 1351 (D.C. Cir. 1983). “[T]he adequacy of a FOIA search is genera lly determined not by the fruits of the search, but by t he appropria teness of the methods used to carry out the search.” Iturralde v. Comptroller of the Currency , 315 F.3d 311, 315 (D.C. Cir. 2003). The

6Court applies a “‘reas onableness’ test to de termine the ‘adequac y’ of search methodology,”

Campbell v. Dep’t of Jus tice , 164 F.3d 20, 27 (D.C. Cir. 1998), and requir es a “reas onable and systematic approach t o locating t he requeste d documents.” Ctr. for Pub. Integr ity v. FCC , 505 F. Supp. 2d 106, 116 (D.D.C. 2007). “The agency must dem onstrate that it‘made a good faith effort to conduct a sea rch for the reque sted recor ds, using methods which can be reas onably expected to pr oduce the information request ed.’” Fischer II , 596 F. Supp. 2d at 42 (quoting Oglesby v. Dep’t of

the Army , 920 F.2d 57, 68 (D.C. Cir. 1990)). Defendant properly r elies upon a r elative ly detail ed, non-conclusory declarat ion that demonstrates the adequa cy of the search. See Weisbe rg , 705 F.2d at 1351. As Hardy explains , in processi ng FOIA and Privacy Act reques ts, the agenc y begins by sear ching its Central Records System (“CRS”), a system that includes records of “administrat ive, applic ant, criminal, personnel, and ot her files compiled for law enforcement purposes.” ( Sixth Hardy Decl. ¶ 8.) The FBI also searc hed its Elec tronic Surve illance (“ELSUR”) indices, a se parate sys tem of records that include s the names of individuals whose el ectronic and/or voice comm unications have been inte rcepted. (Id. ¶¶ 14-15.) Har dy even explains the procedur e agency employees used to determine whether individuals with protect ed identit ies can be pr esumed dead in order to disclose a s much inform ation as poss ible to a FOIA reque ster. (Id. ¶ 55 n.20.) Using thes e systems, FBI em

ployees loca ted one file in SI FO, labeled 281B-SI-45838, that include d 1,904 pages of documents related to pl aintiff. ( Id. ¶ 19; see also Fourth Decl. of David M. Hardy ¶¶5- 9.) Plaintiff attac ks the good faith of defendant’s s earch by ident ifying individual documents that are allegedl y responsive t o his request s but which were not pr oduced. (Pl.’s Opp’n a t 3-5.) However, whether the age ncy located a ll copies of the records soughtis not dispos itive, for an

7agency’s sea rch is not pr esumed unreasonable if it fail s to find every possi bly responsi ve

document. See Steinber

g v. Dep’t of Just ice , 23 F.3d 548, 551 (D.C. Cir. 1994) (explai ning that relevantquestion is not “whether there might exist any other documents possibly re sponsive to the request , but ratherwhether the se arch for those documents was adequat e.”). Even plai ntiff’s showing of specific responsi ve documents that existand were not produce d does not rebutthe presumption of good faith accorded to age ncy affidavits. See id. at 892 n.7. As the Court concluded in Fischer II

, when confronting a similar argument by plainti ff, “Plaintiff raises no specific chal lenge to the FBI’s search methodology, but r ather he ques tions the a dequacy of the FBI’s search ba sed on the agency’ s failure to l ocate addit ional rec ords that he believes t he agency should have i n its posses sion . . . . Plaint iff has failed to rebut t he FBI’s showing of a good faith search.” 596 F. Supp. 2d at 43. Plaintiff now suggests tha t two unproduced documents, rela ted to a sei zed property called “the Bicycle Club,” represe nt more than an isolat ed omission by the FBI, and instea d, they indicate “that the process was defecti ve.” (Pl.’s Opp’n a t 6.) Plaint iff’s asserti on of bad faith based on the omission of the Bicycle Club documents relies on spec ulation that SIFO ever had possession of these documents. See Accuracy in M edia, Inc. v. NTSB , No. 03-CV-024, 2006 W L 826070, at *8 (D.D.C. March 29, 2006) (pl aintiff’s showing of omitted documents “does not mean that they exist now or t hat the agenc y has possessi on of them”). The assertion als o assumes that additi onal responsi ve documents, beyond those discover ed by plainti ff, were not produced. However, “specul ation as t o the exist ence of additional records . . . does not render the searc hes inadequat e.” Concepcion v. FBI , 606 F. Supp. 2d 14, 30 (D.D.C. 2009); see also SafeCard Servs. , 926 F.2d at 1201 (rej ecting “ mere speculation”) ; Oglesby , 920 F.2d at 67 n.13 (D.C. Cir. 1990) (rej ecting “hypothetical asserti ons”).

8Plaintiff’s arguments agains t the adequac y of the search fail t o put “the sufficiency of the

agency’s ide ntificati on or retr ieval proc edure . . . genuinel y in issue.” Weisberg , 627 F.2d at 370. Accordingly, the Court concludes t hat defendant’s s earch was adequat e. IV. EXEMPTIONS Defendant bases its withholdings on al lowances for non-disc losure mem oriali zed in Privacy Act Exemption (j)( 2), and FOIA Exemptions 1, 2, 3, 5, 6, 7(C), 7(D), 7(E), and 7(F). See 5 U.S.C. § 552a(j)(2); id. § 552(b)(1)- (3), (5)- (6), (7)( C)-(7)(F) . As explained bel ow, either plainti ff has conceded or defendant has sufficient ly justi fied each of those exemptions. A. Conceded Exemptions Plaintiff’s opposit ion to the i nstant motion fails to addr ess severa l of the assert ed exemptions. Specifically, he doe s not chall enge the FBI’s r edactions for which i t assert s Privacy Act Exemption (j)(2) and FOIA Exemptions 2, 3, 6, 7(C), and 7(E). Pl aintiff also does not address two of defendant’s t hree cate gories of withholdings under Exemption 7(D). “It is 5 therefore prope r to tre at defendant’s argument as conceded,” with re gard to the e xemptions and categori es not chall enged by plaint iff. See Franklin v. Pot ter , 600 F. Supp. 2d 38, 60 (D.D.C. 6 2009) (cit ing cases)

. Accepting the unc hallenged exe mptions as conceded, the Court ne ed not address their

Defendant’s Vaughn index include s three ca tegories of Exem ption 7(D) withhol dings. 5 (Sixth Hardy Decl. ¶25.) Category (b) (7)(D)-7, whic h plainti ff contests, applies to “Foreign Government Agency Inform ation.” (Id. ) Categorie s (b)(7) (D)-4 and (b) (7)(D)-5, whic h plainti ff does not contes t, are ti tled “Names, Identifying Data and/ or Information Provided by Individual (s) Under an ‘ Implied’ Assurance of Confidentiali ty” and “Persons Intervi ewed by the FBI under an ‘Express ’ Assurance of Confidential ity,” res pectivel y. ( Id. ) Notwithstanding t he principl e that “‘ a document filed pro se is to be li berally 6 construed,’ ” Brown v. Dist. of Columbia , 514 F.3d 1279, 1283 (D.C. Cir. 2008) (quoting Erickson v. Pardus , 551 U.S. 89, 94 (2007)), the Court wil l accept t he unchallenge d exemptions asserte d by the agency, because plaint iff was inform ed of the require ments of Fed. R . Civ. P. 56 in the Court’ s Fox/

Neal Order of December 14, 2009. See supra note 4.

9applicabi lity and wil l grant summary judgm ent for defendant with re spect to al l records withheld

or redact ed under those e xemptions. B. FOIA Exemption 7(D) Plaintiff only chall enges one of defendant’s cat egories of Exemption 7(D) withholdings : “(b)(7) (D)-7 Foreign Government Agency Information (Implied Confidentiality) .” (Def.’s Mot. at 35; Pl.’s Opp’n at 11; see supra note 5.) Plai ntiff does not challe nge the propri ety of invoking Exemption 7(D), but instead sugge sts thatdefendant could part ially r elease documents thatit has wholly withheld i n this cat egory. Since the Court will anal yze segregabi lity sepa rately ( see infra ), there i s no substanti ve challenge to the asse rtion of Exemption 7(D) for the Court to address. C. FOIA Exemption 7(F) Plaintiff challe nges the asse rtion of Exemption 7(F), which protec ts law enforcement information that “could r easonably be expe cted to endange r the li fe or physical sa fety of any individual .” 5 U.S.C. § 552(b)(7)(F), amended byOPEN Governm ent Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524 (1997) . He argues thatbecause he does notpersonall y pose a threa t to any individual , no individual ’s life or physi cal safety can be put at ri sk by releas ing the rec ords as to which defendant as serts Exemption 7(F). Deferri ng to the agency’ s assessment of the potential dangers invol ved in discl osure, the Courtfinds plainti ff’s assurances ins ufficient to compel disclosure of the Exemption 7(F) withhol dings. This exemption “affords broad protect ion to the i dentiti es of individuals mentioned in law enforcement files,” Jimenez v. FBI , 938 F. Supp. 21, 30 (D.D.C. 1996), including any individual “reasonabl y at risk of harm.” Mille r v. Dep’t of Jus tice , 562 F. Supp. 2d 82, 124 (D.D.C. 2008) (quoting Long v. Dep’t of Just ice , 450 F. Supp. 2d 42, 79 (D.D.C. 2006)). Courts

10reviewing ass ertions of Exemption 7(F) “may inquire ‘whethe r there i s some nexus between

disclosur e and possible harm,’” but they defer, within l imits, “to the agency’ s assessment of danger.” Id. (quoting Linn v. Dep’t of Jus tice , No. 92-CV-1406, 1995 W L 631847, at *8 (D.D.C. Aug. 22, 1995)). Hardy’s decla ration des cribes with sufficient parti cularit y the government’s seri ous concern thatdisclosur e of certain i nform ation would “re adily reve al the ide ntitie s” of FBI sources, in turn “plac[ing] them at great r isk.” (Sixth Hardy Decl. ¶ 79.) He supports this concern, in part, by citi ng reports of death threats . ( Id. ) Allegedly, t hese threa ts have come both from plainti ff and from

other indi viduals. (Id. ) Plainti ff vehem ently denie s having ever made any threat s of violence to any pe rson, and declares as much under penalty of perj ury. ( See Pl.’s Opp’n, Decl. of Eugene A. Fischer ¶¶ 2- 3.) However, even if plaint iff is correct, he does not challenge Har dy’s assertion thatother indi viduals have t hreatened t he confidential sources in question. Thus, the FBI’s assessment that publ ic discl osure would put it s sources’ safety at ri sk suffices to justi fy the invocation of Exemption 7(F). D. FOIA Exemption 1 The FBI has invoked FOIA Exemption 1, see 5 U.S.C. § 552(b)(1), to withhol d material pursuant to a n executive or der concerni ng classified na tional se curity i nform ation. (Def.’s Mot

. at 16.) See Exec. Order No. 12,958, 60 Fed. Reg. 19,825, Apr. 17, 1995 (“E.O. 12958”). Plaintiff attac ks the use of Exemption 1 on the ground thathe “has no idea why information concerning hi mself and this case are so c lassi fied.” (Pl.’s Opp’n at9.) Based on defendant’s 7 explanati on of how the m ateria ls are pr operly withhel d under E.O. 12958 and what national security interes ts defendant seeks to protectby withholding the m, the Court concludes that Plaintiff also cl aims that the withhel d documents under Exemption 1 could have been 7 partial ly redact ed. For analysi s of defendant’s obligat ion with respe ct to rea sonably segre gable information, see infra Part IV.F.

11Exemption 1 was properly asserted.

Exemption 1 perm its the wit hholding of records “ specificall y authorize d under crit eria establi shed by an Executive order to be ke pt secretin the int erest of nati onal defense or foreign policy and . . . prope rly clas sified pursuantto such Executi ve order.” 5 U.S.C. § 552(b)(1)

. While an agenc y’s declar ations set ting forth the r easons thatinformation falls within thi s exemption are entit led to subst antial wei ght, they must neverthel ess afford the request er an ample opportunity to cont est, and the c ourt to re view, the soundness of the wit hholding. Campbell v. Dep’t of Jus tice , 164 F.3d at 30 (observi ng that “deferenc e is not equi valent to acquiescenc e”); Goldberg v. Dep’t of State , 818 F.2d 71, 76-77 (D.C. Cir. 1987) (noti ng that Exemption 1 does not relieve the courts of their “indepe ndent responsi bility” to review the agency’s deci sion). Defendant invokes E.O. 12958, which authori zes the cl assificati on of records thatinclude “intell igence act ivitie s and methods,” Exec. Order 12958 § 1.4(c), a nd “foreign rela tions or foreign activi ties,” id. § 1.4(d), and asse rts thatthe Executive Order protec ts documents that the FBI has “marked at the ‘Secr et’ leve l.” (SixthHardy Decl. ¶ 32.) These criter ia and inte rests ar e of the exact sortthat FOIA seeks to e xempt in § 552(b)(1). E.g. , People for Am. Way Found. v. Nat’l Sec. Agency , 462 F. Supp. 2d 21, 33 (D.D.C. 2006) (concluding thatagency had proper ly invoked Exemption 1 for records withhel d pursuant to E.O. 12958). As noted above, court s must aff ord agency decl arations like those filed here “subs tantial weight” because “the Executi ve departments responsi ble for national defense and foreign polic y matters have unique ins ights int o what adverse affects [sic] might occur as a r esult of public disclosur es of a particul ar class ified record.” Krikorian v. Dep’t of State , 984 F.2d 461, 464 (D.C. Cir. 1993) (quoting Military Audit Projec t v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981));

12see Salisbur y v. United Stat es , 690 F.2d 966, 970 (D.C. Cir. 1982). If the agency’s declarat ions “are neit her contra dicted by othe r record e vidence nor cont aminated by indicati ons of bad faith, the revie wing court should notordinari ly second-gues s the agency’ s judgment.” ACLU v. Dep’t of Justic e , 265 F. Supp. 2d 20, 27, 29 (D.D.C. 2003) (noting that the agency’s bur den under Exemption 1 is “not especia lly onerous” ). Hardy elaborat es on the natur e and uses of the information and the r isks involve d in its disclosur e with sufficient det ail to per suade the Court t hat it i s properly c lassified pur suant to E.O. 12958. (Sixth Hardy Decl. ¶¶37, 39.) Hardy’s decl aration de scribes “ the contextand nature of the withhe ld information,” Campbell , 164 F.3d at 31, and the “j ustificati ons for nondisclosur e with reasonably specific det ail, demonstrate[s] that the information withheld logic ally falls within t he claimed exemption, and [is] not controverte d by either c ontrary evi dence in the record nor by e vidence of agency bad faith.” Military Audit Projec t , 656 F.2d at 738 (cit ations omitted). Given the need for deference to agency affidavits, pl aintiff’s bewilderment at the classifica tion falls far short of overcoming the FBI’s expert j udgment that the dispute d information m

ust be withhel d pursuant to E.O. 12958 becaus e it is r easonably connec ted to national de fense or foreign polic y. The Court is “sat isfied that pr oper procedur es have been followed and that the information logically fall s into [Exemption 1], [so it] need not go further to test the expertis e of the agency.” Gardels v. CIA , 689 F.2d 1100, 1104 (D.C. Cir. 1982). E. FOIA Exemption 5 Am ong the documents that defendant found in the FBI’s SIFO files were two drafts of a settle ment agreement, prepared by the U.S. Attorney’ s Office for the Southern Distri ct of Illinoi s for internal purposes. Plai ntiff claims that the final se ttlement agreement was relea sed to the

13public and re fers to him and his forfeited propert y. (Pl.’s Opp’n at10.) Despite pl aintiff’s

urging to re lease the draft, the Court agr ees with defendant that the del iberati ve process pr ivilege of FOIA Exem

ption 5 shiel ds it from release. Exemption 5 “protects from disclosure ‘ inter- agency or intra-agency memorandum s or letter s which would not be avai lable by la w to a party othe r than an agenc y in liti gation with t he agency.’” Dep’t of Int erior v. Klamath Wat er Users Protect ive Ass’n , 532 U.S. 1, 8 (2001) (quoting 5 U.S.C. § 552(b)(5) ). “To qualify, a document must thus satisfy two conditi ons: its source must be a Government agency, and it must fall within the ambit of a privilege agai nst discovery underjudicial standards t hat would govern li tigati on against the agency thatholds it.” Id. The privile ges that ar e incorpora ted into Exemption 5 include the delibe rative pr ocess privile ge, the att orney work-productprivile ge, and the att orney-cli ent comm unications privile ge. See NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 149 (1975). Here, defendant asserts the del iberati ve process pr ivilege. The de liberat ive process privile ge’s purpose i s to “preventinjury to t he quality of agency de cisions.” NLRB , 421 U.S. at 151. The privile ge applies t o records that the government dem onstrate s to be both “predecis ional” – i.e. , “generate d before the adopti on of an agency policy” – and “ delibera tive,”

– i.e. , “reflect[ive of] the give- and-take of the cons ultati ve process.” Coastal States Gas Corp. v. Dep’t of Energy , 617 F.2d 854, 866 (D.C. Cir. 1980). To demonstrate that a doc ument is predecisi onal, the burde n is on the agenc y to “establ ish[] what deliberat ive process is involved, and the role played by the documents in is sue in the cour se of that proces s.” Id. at 868. The “deliber ative” r equirement renders Exemption 5 inappl icable t o purely factual materials, or factual porti ons of otherwise deli berative documents. E.g. , EPA v. Mink, 410 U.S. 73, 91 (1973); Coastal States , 617 F.2d at 867.

14Moreover, “[d]raft documents, by their ve ry nature, a re typica lly predec isional a nd

delibera tive,” Exxon Corp. v. Dep’t of Energy , 585 F. Supp. 690, 698 (D.D.C. 1983), and these documents’ role in the delibera tive proce ss are adequa tely descr ibed by Hardy. According t o Hardy, the drafts for which defendantasserts Exemption 5 were created for int ernal purpos es only. (Sixth Hardy Decl . ¶ 50.) Defendant has produc ed partia lly redac ted copies t o plainti ff, and plainti ff concedes that he has ac cess to the final settl ement agreement, but plaintiff seeks disclosur e of the draft documents without redac tions. (Pl.’ s Opp’n at 10.) The re dacted port ions of the draft documents differ from the publica lly rel eased final set tlement agreement. (Sixth Hardy Decl. ¶ 50.) Hardy expounds on the pre decisional and deliber ative at tribute s of the drafts: the y were part of the government’s negot iations a nd preparat ions for a final set tlement agreement, and as a result of thei r advisory na ture thei r relea se could affect employees’ candor wit h their col leagues on similar matters in the futur e. (Sixth Hardy Decl . ¶¶ 49-50.) The dr afts originat ed from a government agency – the U.S. Attorney’s Office. ( Id. ¶ 50.) They are pr edecisiona l because, as proposed terms f

or a document which the government would latersign ( id. ), they had a conc rete role withi n a decision- making process. Finally, the redacte d terms com posed advice and not facts, thus const ituting de liberat ive material. Given this descri ption and the r elevant l aw, the Court concludes t hat the dra fts were properl y withheld. F. Segregabilit y Agency defendants in FOIA cases al ways carry a bur den of showing that withhel d documents contain no “reas onably segregable” factual information, 5 U.S.C. § 552(b), and plainti ff suggests that defendant has not satis fied its burden he re. ( See, e.g. , Pl.’s Opp’n at 9.) FOIA requires tha t “even if some m ateria ls from the requested rec ord are exempt from

15disclosur e, any ‘reas onably segregable’ information from those docum ents must be disclosed

after redact ion of the exempt inform ation,” Johnson v. Executi ve Office f or U.S. Attorneys , 310 F.3d 771, 776 (D.C. Cir. 2002) (quoting 5 U.S.C. § 552(b)), “ unless [the non-exe mpt portions] are inextricably i ntertwined wit h exempt portions.” Mead Data Cent., Inc. v. Dep’ t of the Air Force , 566 F.2d 242, 260 (D.C. Cir. 1977). To show that the agenc y met its segregabil ity obliga tion, Hardy decl ares under pe nalty of perjury that “[t]he FBI has processe d and releas ed all segr egable information from the documents responsive to pl aintiff’s reques t” and that“[i]n the processing of the r ecords concerning pl aintiff, the object ive was to rel ease as much segregable i nform ation as poss ible” without revea ling exempted information. (Sixth Hardy Decl. ¶¶ 71, 80; see also id. ¶¶ 21, 8 32(e), 55, 65.) Defendant’ s conscient ious efforts a t segregat ion are manifest by the agency’ s disclosur e to plaint iff of 1,108 partially reda cted pages of recor ds, compared with only 48 pages withheld in full. ( See Sixth Hardy Decl. ¶ 4.) The exemptions at work here and defendant ’s reasons for withholding implicate s ensitive information, the disclosur e of which could jeopardi ze the ident ity of confidential sources, the secrecy of invest igatory and e nforcement techniques, the pr ivacy and safety of indivi duals, and internat ional law enforcement partne rships. Mor eover, Hardy expla ins that t he documents include information “thatis detai led and singul ar in natur e,” such thateven if the source ’s name is redact ed one could nonethe less ident ify who the source was. (Sixth Hardy Decl. ¶¶ 73, 79.) Therefore, and because “there i s nothing in the record t o indicate that such [withholdi ngs] are inappropri ate,” the Courtis incli ned to acceptas true Hardy’ s assert ions. See Judicial Watch, Inc. v. Dep’t of

Justice , No. 01-CV-639, 2006 W L 2038513, at *5-*6 (D.D.C. July 19, 2006) The presumption of good faith is sustai ned by the Court’s prior concl usion in Fischer II 8 that defendant’ s segregabi lity anal ysis had been cons istent with FOIA’s requirements. See 596 F. Supp. 2d at 44.

16(rejec ting plai ntiff’s segregat ion claim where agency decl aration “ very clear ly declar e[d], under

penalty of perjury . . . that ‘al l reasonabl y segregable information has been disclos ed’”). Having shown both the highly s ensitive nature of the exempt information and that non-e xempt information is so intertwined with exempt information that the FBI coul d not relea se any meaningful portion without disc losing exempt information, defendant has sati sfied its segregabil ity burden. V. MONEY DAMAGES Plaintiff seeks unspec ified money dam ages under the Privacy Act’s provision for ci vil remedies. ( See Pl.’s Opp’n at 12.) He specificall y invokes the Act’ s applicat ion of damages for an agency’s fail ure “to maintain any r ecord . . . with such accur acy, releva nce, timeliness, and completeness as is nec essary to a ssure fairnes s in any determination,” 5 U.S.C. § 552a(g)(1)(C) or “to comply with any other pr ovision of [the Privacy Act], or any rule promulgated there under, in such a way as to ha ve an adverse e ffect on an individual.” Id. § 552a(g)(1) (D). Having already found thatdefendant neitherinappropri ately withhe ld information nor acted i n bad faith, the Court must rejectany claim for dam ages. The Privacy Act re quires agenc ies to e nsure thatall rec ords “used by the agency in making any determination about any indi vidual” ar e maintained “with such ac curacy, rel evance, timeliness, and completeness as is reasonably necessary to assure fairness to the i ndividual i n the determination.” 5 U.S.C. § 552a(e)( 5). Flagrantviolati ons of the Privacy Act ca n entitl e a plainti ff to m oney damages under § 552a(g)(1) . If the Court finds thatthe agency “ac ted in a manner which was intentional or willful,” the United States is liabl e for “actual damages sustained by t he individual as a resul t of” the agency’s failure to pr operly maintain the r ecord. Id. § 552a(g)(4) ; see generall y Doe v. United State s , 821 F.2d 694, 697 n.8 (D.C. Cir. 1987). In

17sum, to m ake out a cla im f or damages, a “plain tiff m ust alle ge: inaccur ate recor ds, agency inte nt, proximate causation, a nd an adverse det ermination.” Toolasprashad v. Bureau of Prisons , 286 F.3d 576, 583 (D.C. Cir. 2002) (internal quotati on marks om itted) ; see Deters v. U.S. Parole Comm’n , 85 F.3d 655, 657 (D.C. Cir. 1996). The Court has grant ed summ ary judgment to defendant with re spect to the only information the FBI has withheld pur suant to the Privacy Act, see supra Part IV.A, and without any violati on of the Privacy Act, no damages can be awarded. The Courthas also found that – despite the agency’s l ess-than- perfect sear ch and producti on of docum ents – defendant act ed in good faith. ( See supra Part II.) Aside from the already-est ablished abs ence of intenti onally or willfully inappr opriate wit hholdings, plai ntiff does not claim to have suffered “actua l damages” as a consequence of any non-disclosur e. A reques t for money dam ages cannot be gr anted where plainti ff has neither pled norproven those el ements.

CONCLUS ION For the reas ons stated he rein the Courtwill grantdefendant’s motion for summ ary judgment in part. This judgment, togethe r with the Court ’s disposi tion in Fischer II , disposes of all cla ims in the instant c ase. A separat e Order accompanies this Memorandum Opinion.

/s/ ELLEN SEGAL HUV ELLE United States DistrictJudge Date: July 13, 2010

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