UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 

)

JESSE SKINNER, )

)

Plaintiff, )

)

v. ) Civil Action No. 09-0725 (PLF)

)

UNITED STATES DEPARTMENT )

OF JUSTICE, et al., )

)

Defendants. )

 )

OPINION

Plaintiff brought this action under the Freedom of Information Act (“FOIA”),

5 U.S.C. § 552, against the United States Department of Justice (“DOJ”) and four of its

components. The Court has resolved the claims regarding plaintiff’s FOIA requests to the

Executive Office for United States Attorneys (“EOUSA”) and the Federal Bureau of

Investigation (“FBI”). See Skinner v. U.S. Dep’t of Justice, 744 F. Supp. 2d 185 (D.D.C. 2010).1

This matter now is before the Court on defendants’ renewed motion for summary judgment

which addresses three outstanding issues regarding the response of the Bureau of Alcohol,

The EOUSA has released 100 pages of records without charge to plaintiff, see 1

Defs.’ Renewed Mot. for Summ. J., Ex. 1 (Letter to plaintiff from William G. Stewart II,

Assistant Director, Freedom of Information & Privacy Staff, EOUSA, dated January 3, 2011). 

No genuine issues of material fact are in dispute with respect to plaintiff’s FOIA request to the

EOUSA, and defendants’ renewed motion for summary judgment will be granted in this respect.
Tobacco, Firearms and Explosives (“BATFE”) to plaintiff’s July 3, 2007 FOIA request, assigned

No. 08-171.2

I. BACKGROUND

In relevant part, plaintiff’s FOIA request to the BATFE read:

This letter serves as a FOIA request . . . for copies of any and all

records created and received by the Biloxi, Mississippi Field Office

for the [BATFE] in regards to myself – JESSE SKINNER. In

addition, this is a request for an index of any and all files maintained

by the [BATFE] in reference to me.

Defs.’ Mem. of Points & Authorities. in Supp. of the Mot. to Dismiss In Part, and Alternatively,

for Summ. J. (“Defs.’ First Mem.”) [Dkt. #18], Decl. of Averill P. Graham (“Graham Decl.”),

Ex. Q (Letter from plaintiff to BATFE, Biloxi, Mississippi Field Office, dated July 3, 2007) at 1. 

The BATFE released responsive records to plaintiff on three occasions. Initially, it released 100

pages of records on November 21, 2007 at no cost to plaintiff. Id., Graham Decl. ¶ 25. Plaintiff

was notified at that time “that some of the pages responsive to his FOIA request had been

referred to other agencies where they originated.” Id., Graham Decl. ¶ 25. Twelve pages of

records were referred to the Department of the Army (“Army”), id., Graham Decl. ¶ 26, and one

page was referred to the U.S. Customs and Immigration Services (“USCIS”), id., Graham Decl. 

¶ 29. On December 13, 2007, upon receipt of a payment of fees assessed for the search for a

copying of the records, the BATFE released more documents. Id., Graham Decl. ¶ 32. Lastly, on

 Also before the Court are Plaintiff’s Motion to Renew Plaintiff’s Motion for 2

Defendant DEA to Turn Over to Plaintiff the Medical Records of Craig Shows and John

Bordages [Dkt. #61] and Plaintiff’s Motion to Order the Defendant DEA to Revise [Its] “Vaughn

List” to the Current Status Information In Their Possess and to Release All Information to

Plaintiff Immediately [Dkt. #62]. Both motions will be denied.

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“review of all the documents for litigation,” the BATFE released 34 more pages of records on

October 26, 2009. Id., Graham Decl. ¶ 41.

A. Disclosure of a Compact Disc

Among the records responsive to plaintiff’s FOIA request to the BATFE was “a

CD of photographs . . . referenced on the cover sheet related to request number 08-171 on

December 13, 2007, but was inadvertently not released to [plaintiff].” Defs.’ Mem. in Supp. of

their Renewed Mot. for Summ. J. (“Defs.’ Renewed Mot.”), Ex. 2 (“Labrie Decl.”) ¶ 4. This 3

“CD contained 8 photographs of two individuals, one of whom was female, and both of whom

were not further identified.” Defs.’ Renewed Mot., Labrie Decl. ¶ 4. It was believed that the

BATFE “intended to withhold the CD in full because [no one] could identify the individuals, but

accidentally omitted it from the exemption portion of the cover sheet.” Id., Labrie Decl. ¶ 4. 

Staff discussed the CD with the assigned case agent, and it was determined “that one of these

individuals is [plaintiff].” Id., Labrie Decl. ¶ 4. Accordingly, the BATFE has released the

photograph of plaintiff and the photographs of the female “with her facial features redacted under

Exemption 7(C).” Id., Labrie Decl. ¶ 4.

Because defendants’ prior motion for summary judgment and supporting 3

declaration did not indicate whether the CD had been released, the Court deferred consideration

of plaintiff’s “Motion for Production of ATF CD Containing Photographs and All Other

Photograph’s [sic] with Respect to Plaintif[f]’s Instant Civil Action in Possession of the ATF”

[Dkt. #22]. Skinner v. U.S. Dep’t of Justice, 744 F. Supp. 2d at 190 n.4. The agency since has

released the CD. Defs.’ Renewed Mot., Labrie Decl. ¶ 3. In addition, in response to plaintiff’s

request “during this litigation . . . [for] color copies of 15 photographs of laboratory exhibits

consisting of 9 printed pages . . . which were . . . delineated in [BATFE’s] previously filed

Vaughn Index,” the BATFE released redacted copies of these photographs on November 8, 2010. 

Id., Labrie Decl. ¶ 5. As is discussed below, the BATFE properly has redacted images of the

third parties, and plaintiff’s motion will be denied as moot.

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B. Referral to the Department of the Army

On November 21, 2007, the BATFE referred 12 pages of records to the

Department of the Army. Defs.’ First Mem., Graham Decl. ¶ 26. Relevant to this discussion are

the documents described as “[a] copy of a Certificate of Release or Discharge from Active Duty”

and two memoranda, one “from the Commander, 86 Ordnance Battalion to the Commander, US th

Army Armor Center and Fort Knox, dated March 8, 1991,” and one “from the Commander,

Company B, to the Commander, 86 Ordnance Battalion, dated March 6, 1991,” both referencing th

plaintiff’s discharge from the Army. Defs.’ Renewed Mot., Decl. of Thom M. Jones (“Jones

Decl.”) ¶ 3. The Army released these records to plaintiff in part after redacting the names of 4

third parties under Exemption 6. Id., Jones Decl. ¶ 4. Although plaintiff was advised of his right

to appeal this determination to the Commander, U.S. Army Human Resources Command

(“HRC”), id., Jones Decl., Ex. (Letter to plaintiff from Kelly R. Fraser, Colonel, U.S. Army,

Chief of Staff, U.S. Army Human Resources Command, dated March 13, 2008), “HRC records

do not indicate that [plaintiff] appealed the partial denial” of his FOIA request. Id., Jones Decl. 

¶ 7. 

C. Referral to the U.S. Citizenship and Immigration Services 

On December 13, 2007, the BATFE referred a one-page document to the U.S.

Citizenship and Immigration Service (“USCIS”). Defs.’ First Mem., Graham Decl. ¶ 29; see id.,

Graham Decl., Ex. AA (Letter to B.J. Welsh, FOIA Officer, USCIS, from Suzanne Placanica,

The remaining documents were routing and transmittal forms and copies of 4

correspondence pertaining to the original FOIA request, the referral of documents from the

BATFE to the Army, and the Army’s release of records to plaintiff. See Defs.’ Renewed Mot.,

Jones Decl. ¶ 4.

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Disclosure Specialist, BATFE, dated December 13, 2007). The document was “a printout of

information extracted from a Privacy Act system of records commonly referred to as [t]he

Enforcement Communications System (formerly, Treasury Enforcement Communications

System (TECS)).” Defs.’ Renewed Mot., Decl. of Jill E. Eggleston (“Eggleston Decl.”) ¶ 5

(emphasis removed). From this document, the USCIS redacted “internal computer codes, an

unpublicized investigation technique, and the names and employee identification numbers of

federal law enforcement officers” under FOIA Exemptions 2, 7(C), and 7(E). Id., Eggleston

Decl. ¶ 7. The USCIS released this document to plaintiff on December 27, 2007. Id., Eggleston

Decl., Ex. C (Letter from T. Diane Cejka, Director, USCIS, dated December 27, 2007).

II. DISCUSSION

A. Summary Judgment in a FOIA Case

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

judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). 

The Court grants summary judgment if the movant shows that there is no genuine dispute as to

any material fact and is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). In a

FOIA action to compel production of agency records, the agency “is entitled to summary

judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls

within the class requested either has been produced . . . or is wholly exempt from the [FOIA’s]

inspection requirements.’” Students Against Genocide v. Dep’t of State, 257 F. 3d 828, 833

(D.C. Cir. 2001) (quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir.

1978)). Summary judgment may be based solely on information provided in an agency’s

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supporting affidavits or declarations if they are relatively detailed and when they describe “the

documents and 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); see Beltranena v. Clinton,

770 F. Supp. 2d 175, 182 (D.D.C. 2011).

Plaintiff’s opposition to defendants’ renewed summary judgment motion is

devoted entirely to his quest to obtain from the United States District Court for the Southern

District of Mississippi exhibits from his criminal trial, defendants’ alleged possession of these

exhibits, and their alleged refusal to disclose them. According to plaintiff, his father “went to the

Courthouse in South Mississippi and was allowed to examine the exhibits and allowed to take

photographs” on two occasions in November 2010. Pl.’s Resp. in Opp’n of Def.’s Mot. for

Summ. J. (“Pl.’s Opp’n”) ¶ 17; Pl.’s Aff. in Supp. of Pl.’s Resp. in Opp’n of Defs.’ Mot. for

Summ. J. (“Pl.’s Aff.”) ¶¶ 8-9. Among these documents, plaintiff’s father allegedly “discovered

. . . incriminating evidence that further proves that the DOJ used false fraudulent evidence to

convict plaintiff.” Pl.’s Opp’n ¶ 17. Days later, a Drug Enforcement Administration (“DEA”)

agent allegedly “went to the District Courthouse in South Mississippi and took the trial exhibits.” 

Id.; Pl.’s Aff. ¶ 12. Defendants, plaintiff claims, have “take[n] possession of the incriminating

evidence to prevent [him] from further exposing them as liars,” and depriving him of an

opportunity to have a private investigator review these exhibits “to further [his] claims of

wrongful acts on behalf of DOJ employees involved” in the criminal case. Id. ¶ 30. Thus,

plaintiff asserts, “the evidence exhibits [are] in the possession of the . . . DEA and this Court has

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the authority to enjoin the agency from withholding agency records and to order the production

of any agency records properly withheld from complainant.” Pl.’s Opp’n ¶ 22 (brackets and

internal quotation marks omitted). 

“A requester may challenge the government’s showing by setting out specific

facts showing a genuine issue for trial,” Brown v. U.S. Dep’t of Justice, 742 F. Supp. 2d 126, 129

(D.D.C. 2010) (citation and internal quotation marks and brackets omitted), but he “cannot rebut

the good faith presumption” afforded to an agency’s supporting declarations “through purely

speculative claims about the existence and discoverability of other documents.” Id. (citations

omitted). Nor do plaintiff’s speculative and conclusory assertions amount to “contradictory

evidence in the record or by evidence of agency bad faith.” Halperin v. Cent. Intelligence

Agency, 629 F.2d 144, 148 (D.C. Cir. 1980); see Judicial Watch, Inc. v. Bd. of Governors of the

Fed. Reserve Sys., 773 F. Supp. 2d 57, 60 (D.D.C. 2011).

B. Exemptions

1. Exemption 2

Exemption 2 protects from disclosure material that is “related solely to the

internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). From a one-page

document described as a “Person/Subject Entry screen printout,” the USCIS withholds “internal

computer codes associated with a hyper-sensitive law enforcement database containing homeland

security information, i.e., TECS.” Defs.’ Renewed Mot., Eggleston Decl., Ex. D (Vaughn Index)

at 1 (page number designated by the Court). “TECS is a comprehensive computerized law

enforcement and communications information system . . . designed to identify individuals,

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businesses, and vehicles suspected of or involved in violation of federal law.” Id., Eggleston

Decl., Ex. D at 1. It also allows for “message transmittal between federal, state, and local law

enforcement agencies,” and “provides access to the FBI’s National Crime Information Center

(NCIC) and the National Law Enforcement Telecommunications Systems (NLETS).” Id.,

Eggleston Decl., Ex. D at 1. “[S]trict access controls, passwords and background checks on

individuals accessing the data” are among the measures taken to ensure that TECS data is being

handled properly. Id., Eggleston Decl., Ex. D at 1-2. 

The USCIS withholds as “high 2” exempt information these internal computer

codes, explaining that they “not only permit access to the system, but are tied to the means to

identify, monitor, track, audit and, when necessary, pursue, apprehend and prosecute

unauthorized uses and users.” Defs.’ Renewed Mot., Eggleston Decl., Ex. D at 2. Its declarant

explains that “[p]ublic dissemination of these access codes would permit unauthorized users to

avoid recognition, instant detection and apprehension, while simultaneously giving them nearunfettered access to one of the nation’s most critical electronic law enforcement infrastructures

and the ability to irreparably corrupt the integrity of data contained therein.” Id., Eggleston

Decl., Ex. D at 2.

The difference between “High 2” and “Low 2” exempt information, long

recognized by the D.C. Circuit, is no longer an accepted distinction. See Milner v. Dep’t of the

Navy, 131 S.Ct. 1259, 1265 (2011) (“Our construction of the statutory language simply makes

clear that Low 2 is all of 2 (and that High 2 is not 2 at all . . . .”)). The Supreme Court recently

has held, “consistent with the plain meaning of the term ‘personnel rules and practices,’” that

Exemption 2 “encompasses only records relating to issues of employee relations and human

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resources.” Id. at 1271. Under Milner, then, “Exemption 2 may no longer be used to justify

withholding records on the grounds that disclosure would risk circumvention of the law or

federal agency functions.” Raher v. Fed. Bureau of Prisons, No. CV-09-526, 2011 WL 2014875,

at *2 (D. Or. May 24, 2011). On this record, the Court cannot grant summary judgment in

defendants’ favor with respect to any information withheld under Exemption 2.

2. Exemption 6

Exemption 6 protects “personnel and medical files and similar files the disclosure

of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. 

§ 552(b)(6). The term “similar files” is construed broadly and is “intended to cover detailed

Government records on an individual which can be identified as applying to that individual.” 

U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982) (citation omitted). “The

information in the file ‘need not be intimate’ for the file to satisfy the standard, and the threshold

for determining whether information applies to a particular individual is minimal.” Milton v.

U.S. Dep’t of Justice, __ F. Supp. 2d __, __, 2011 WL 1743234, at *2 (D.D.C. May 6, 2011)

(quoting New York Times Co. v. Nat’l Aeronautics and Space Admin., 920 F.2d 1002, 1006 (D.C.

Cir. 1990)). Information protected under Exemption 6 includes such items as a person’s name,

address, place of birth, employment history, and telephone number. See Nat’l Ass’n of Retired

Fed. Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989); see also Gov’t Accountability

Project v. U.S. Dep’t of State, 699 F. Supp. 2d 97, 106 (D.D.C. 2010) (personal email addresses);

Schmidt v. Shah, No. 08-2185, 2010 WL 1137501, at *9 (D.D.C. Mar. 18, 2010) (employees’

home telephone numbers); Schwaner v. Dep’t of the Army 696 F. Supp. 2d 77, 82 (D.D.C. 2010)

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(names, ranks, companies and addresses of Army personnel); United Am. Fin., Inc. v. Potter, 667

F. Supp. 2d 49, 65-66 (D.D.C. 2009) (name and cell phone number of an “unknown individual”).

Once this threshold inquiry is met, the Court employs a balancing test to determine whether

release of such information constitutes a clearly unwarranted invasion of personal privacy. 

Washington Post Co. v. U.S. Dep’t of Health and Human Servs., 690 F.2d 252, 260 (D.C. Cir.

1982). It is the requester’s obligation to demonstrate the existence of a significant public interest

in disclosure. See Coleman v. Lappin, 680 F. Supp. 2d 192, 196 (D.D.C. 2010).

The Army denied plaintiff’s FOIA request in part “in accordance with Title 5,

United States Code, Section 552(b)(6), and paragraph 3-200, Exemption 6, Army Regulation 

25-55, the Department of the Army Freedom of Information Act Program.” Defs.’ Renewed

Mot., Jones Decl. ¶ 5. Redacted were the names of third parties appearing in the three

documents referred by the BATFE to the Army, see id., Jones Decl., Attach., in order “to protect

[their] personal privacy,” id., Jones Decl. ¶ 4. Only the names were redacted; the remainder of

the documents was released. Id., Jones Decl. ¶ 6. Wholly absent from plaintiff’s opposition is an

assertion of any public interest which outweighs the personal privacy interests of these third

parties. See generally Pl.’s Opp’n. 

The Court concludes that the Army has complied fully with its obligations under

the FOIA. Its decision to redact the names of third parties was appropriate, and all segregable

information has been released to plaintiff.

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3. Exemption 7(C)

Exemption 7(C) protects from disclosure information in law enforcement records

that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5

U.S.C. § 552 (b)(7)(C). In determining whether this exemption applies to particular material, 5

the Court must balance the interest in privacy of individuals mentioned in the records against the

public interest in disclosure. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C.

Cir. 2007); Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993); Davis v. U.S. Dep’t

of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992) . The privacy interest at stake belongs to the

individual, not the government agency, U.S. Dep’t of Justice v. Reporters Comm. for Freedom of

the Press, 489 U.S. 749, 763-65 (1989); Nat’l Ass’n of Retired Fed. Employees v. Horner, 879

F.2d 873, 875 (D.C. Cir. 1989) (noting individual’s significant privacy interest “in avoiding the

unlimited disclosure of his or her name and address”), and individuals have a “strong interest in

not being associated unwarrantedly with alleged criminal activity. Stern v. Fed. Bureau of

Investigation, 737 F.2d 84, 91-92 (D.C. Cir.1984). “[T]he 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.’” Davis v. U.S. Dep’t of Justice, 968 F.2d at 1282 (quoting Reporters

Comm. for Freedom of the Press, 489 U.S. at 773). It is the requester’s obligation to articulate a

public interest sufficient to outweigh an individual’s privacy interest, and the public interest must

be significant. See Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004). 

The Court already has determined that the records responsive to plaintiff’s FOIA

5

request were compiled for law enforcement purposes. See Skinner v. U.S. Dep’t of Justice,

744 F. Supp. 2d at 206.

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Under Exemption 7(C), the USCIS withholds “the names and identification

numbers of law enforcement personnel found in TECS records compiled for law enforcement

purposes.” Def.’s Mem., Eggleston Decl., Ex. D at 2. Its declarant asserts that “[p]ublic

identification of any of these individuals could conceivably subject them to harassment and

annoyance in the conduct of their official duties, as well as in their private lives.” Id., Eggleston

Decl, Ex. D at 2. Further, the declarant asserts that individuals “who serve as career public

servants are not thereby stripped of all vestiges of personal privacy, even with respect to the

discharge of their official public duties,” such that the “interest in protecting the privacy of . . .

law enforcement officers and employees” prevails “[i]n the absence of a demonstration of

significant misconduct.” Id., Eggleston Decl, Ex. D at 2. Accordingly, the USCIS redacts the

names of and identifying information about law enforcement personnel mentioned in the relevant

records in order to prevent the “risk [of] impairing their effectiveness by subjecting them to

potential harassment, stigmatization, overwhelming media scrutiny or, worse, physical harm.” 

Id., Eggleston Decl, Ex. D at 2. 

Applying a similar rationale, the BATFE withholds under Exemption 7(C) the

name of a federal law enforcement agent and “the face of a third party individual referenced in

connection with the investigation” of plaintiff’s activities. Defs.’ Renewed Mot., Labrie Decl. 

¶ 9. Absent plaintiff’s submission of “waivers that would permit release of any third party

individual’s information,” the BATFE’s declarant explains that the agency “balance[d] the

interests at stake” and “determined that . . . disclosure of the information could reasonably be

expected to cause the third parties . . . embarrassment, harassment, and harm, and would do little,

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if anything at all, to aid the public’s understanding of the BATFE.” Id., Defs.’ Renewed Mot.,

Labrie Decl. ¶ 11. 

“The D.C. Circuit has consistently held that [E]xemption 7(C) protects the privacy

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

witnesses and informants, and has determined that such third-party information is categorically

exempt from disclosure under [E]xemption 7(C), in the absence of an overriding public interest

in its disclosure.” Lewis v. U.S. Dep’t of Justice, 609 F. Supp. 2d 80, 84 (D.D.C. 2009) (internal

quotation marks and citations omitted); see Sussman v. U.S. Marshals Serv., 494 F.3d at 1116

(names, addresses, telephone numbers, social security numbers and other private information

about law enforcement officers, other government employees, and third parties other than a third

party who had authorized the release of records about himself to the requester); Richardson v.

U.S. Dep’t of Justice, No. 09-1916, 2010 WL 3191796, at *7-8 (D.D.C. Aug. 13, 2010)

(identities of and personal information about FBI Special Agents, Metropolitan Police

Department officers, law enforcement technicians, an Assistant United States Attorney, and

eyewitnesses to an attempted murder); Lasko v. U.S. Dep’t of Justice, 684 F. Supp. 2d 120, 132

(D.D.C. 2010) (identities of DEA Special Agents and laboratory personnel, and state and local

law enforcement officers); Willis v. U.S. Dep’t of Justice, 581 F. Supp. 2d 57, 76 (D.D.C. 2008)

(identities of federal and local law enforcement personnel). Absent a showing by plaintiff that

“the public interest sought to be advanced is a significant one. . . and . . . [that] the information is

likely to advance that interest,” Sussman v. U.S. Marshals Serv., 494 F.3d at 1115 (internal

quotation marks and citations omitted), the Court concludes that the agency properly withheld

this third party information under Exemption 7(C).

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4. Exemption 7(E)

Exemption 7(E) protects from disclosure law enforcement records “to the extent

that the production of such law enforcement records or information . . . 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). Courts have held that

information pertaining to law enforcement techniques and procedures properly is withheld under

Exemption 7(E) where disclosure reasonably could lead to circumvention of laws or regulations. 

See, e.g., Morley v. Cent. Intelligence Agency, 453 F. Supp. 2d 137, 157 (D.D.C. 2006)

(approving the withholding of information pertaining to security clearances and background

investigations on the ground that “disclosure of CIA security clearance and investigatory

processes would risk circumvention of those processes in the future”), rev’d on other grounds,

508 F.3d 1108 (D.C. Cir. 2007); Fisher v. U.S. Dep’t of Justice, 772 F. Supp. 7, 12 (D.D.C.

1991) (upholding FBI’s decision to withhold information about law enforcement techniques

where disclosure would impair its future effectiveness and, “within the context of the documents

at issue could alert subjects in drug investigations about techniques used to aid the FBI”), aff’d,

968 F.2d 92 (D.C. Cir. 1992). 

“The TECS screen printout at issue here, among other things, contains a ‘allpoints bulletin’ regarding an ongoing criminal law enforcement operation; a brief profile of the

subject of this communication, including his involvement, habits and level of threat; subject

tracking; and actions to be taken by law enforcement agents stationed at check points if subjects

are encountered.” Defs.’ Renewed Mot., Eggleston Decl., Ex. D at 3. Release of this

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information to plaintiff, the declarant states, “will have the unintended and undesirable result of

placing the same information at the disposal of other subjects of investigation(s), assisting them

to evade detection and apprehension by alerting them to the investigation techniques used to aid

the underlying law enforcement operation and, thereby, impair the effectiveness of those law

enforcement techniques.” Id., Eggleston Decl., Ex. D at 3. 

D.C. Circuit precedent “sets a relatively low bar for the agency to justify

withholding” information under Exemption 7(E). Blackwell v. Fed. Bureau of Investigation, __

F.3d __, __, 2011 WL 2600831, at *3 (D.C. Cir. July 1, 2011). The exemption allows for

withholding information in the face of “not just for circumvention of the law, but for a risk of

circumvention; not just for an actual or certain risk of circumvention, but for an expected risk;

not just for an undeniably or universally expected risk, but for a reasonably expected risk; and not

just for certitude of a reasonably expected risk, but for the chance of a reasonably expected risk.” 

Id. (quoting Mayer Brown LLP v. Internal Revenue Serv., 562 F.3d 1190, 1193 (D.C. Cir.

2009)). Law enforcement procedures and techniques are afforded categorical protection under

Exemption 7(E), see Fisher v. U.S. Dep’t of Justice, 772 F. Supp. at 12 n.9, and plaintiff presents

no argument to rebut the USCIS’ showing that the information withheld falls within the scope of

such protection. 

The Court concludes that the USCIS properly has redacted from the TECS screen

printout information pertaining to the techniques, procedures and guidelines for action in an

ongoing criminal law enforcement operation.

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III. CONCLUSION

The Court concludes that the BATFE has demonstrated its full compliance with

the FOIA by releasing copies of photographs after having redacted only the name of a federal law

enforcement agent and the face of a third party, as has the Army by redacting only the names of

third parties. Further, the Court concludes that the USCIS properly withheld the names and

employee identification numbers of federal law enforcement officers under Exemption 7(C) and

investigation techniques under Exemption 7(E). In these respects, defendants’ renewed motion

for summary judgment will be granted. Because the USCIS relies on an impermissible basis for

 withholding computer access codes under Exemption 2, the motion will be denied in part

without prejudice. An appropriate Order accompanies this Opinion. 

/s/ 

PAUL L. FRIEDMAN

DATE: August 24, 2011 United States District Judge

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