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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LAURA SENNETT,

Plaintiff,

v. Civil Action No. 12-495 (JEB)

DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION

Plaintiff Laura Sennett – a photojournalist who claims a special interest in covering 

protests, political demonstrations, and “grassroots activism” – submitted a request to the Federal 

Bureau of Investigation seeking “files, correspondence, or other records concerning [herself].” 

After a search and review of documents, the agency produced more than 1,000 pages of 

responsive records but withheld and redacted a number of records pursuant to specific provisions 

of the Freedom of Information Act and the Privacy Act. Unsatisfied, Plaintiff brought this suit 

challenging the sufficiency of Defendant’s search, as well as the propriety of many of its 

withholdings. Arguing that it has complied with its obligations, Defendant now moves for 

summary judgment. Because the Bureau’s search was adequate and its withholdings largely

proper, the Court will grant Defendant’s Motion for the most part.

I. Background

There are a number of background facts that appear to be undisputed. In the early 

morning hours of April 12, 2008, protesters gathered at the Four Seasons Hotel in Georgetown 

for a demonstration during the International Monetary Fund’s annual spring meeting. See

Compl., ¶¶ 7-8. Sennett attended with the purpose of photographing the event. See id., ¶ 8. 
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Following the demonstration and acts of vandalism surrounding it, a warrant to search Sennett’s 

home was obtained, which was executed on September 23, 2008. See Sennett v. United States, 

667 F.3d 531, 532-36 (4th Cir. 2012) (describing demonstration and subsequent search). The 

officers who conducted the search seized “more than 7,000 pictures, two computers, several 

cameras and other camera equipment.” Compl., ¶ 9.

Sennett thereafter submitted the following request to the FBI seeking records related to 

the search: “This is a request for records under the Privacy Act. I request copies of all files, 

correspondence, or other records concerning myself. Please search both your automated indices 

and the older general (manual) indices. To prove my identity, I am enclosing a completed form 

DOJ-361.” Mot., Declaration of David M. Hardy, Exh. A (9/5/2010 Sennett Request). On 

March 18, 2011, the FBI notified Plaintiff that 280 pages of records had been reviewed and 213 

pages were being released in full or in part pursuant to specific provisions of FOIA and the 

Privacy Act. See Hardy Decl., Exh. B (3/18/2011 FOIA Response). These records were located 

as a result of a search of the indices to the FBI’s Central Records System. See Hardy Decl., ¶¶ 6, 

21-22. 

Sennett administratively appealed the FBI’s determination on the release and withholding 

of documents, and the agency’s decision was subsequently affirmed. See id., Exh. C (3/23/11

Appeal); Exh. E (Decision Affirming Appeal). Sennett then filed this suit on March 30, 2012, 

alleging violations of FOIA and the Privacy Act. See Complaint, ¶¶ 4, 12-19. Before a briefing 

schedule was set, Sennett received a letter from the FBI informing her that 

[a]s a result of your litigation, we conducted a new search 

of the indices to the Central Records System at FBI 

Headquarters. The FBI identified one “197” file that 

appears to be responsive to you as it pertains to Civil 

Action Number 1:10-cv-01055, Laura Sennett v. United 

States, et al., U.S. District Court for the Eastern District of 
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Virginia. A “197” file is categorized as a civil litigation 

file that contains material concerning the civil action that 

you lodged against the U.S. government. The FBI does not 

routinely process 197 files unless the requester specifically 

requests us to do so because the file contains material sent 

to and from the plaintiff and/or documents filed before the 

court.

See Hardy Decl., Exh. F (7/11/2012 FBI Letter). Sennett requested that these documents be 

produced, and they were released to her on February 28, 2013. See id., Exh. G (7/20/13 Letter 

Requesting 197 File); Exh. H (2/28/13 FOIA Response). For this second production, 1,695 

pages were reviewed, and 1,076 pages were released in full or in part. As with its previous 

production, the FBI withheld a number of documents, this time pursuant to the Privacy Act, 

FOIA exemptions, and a sealing Order in a civil case Sennett had filed in the Eastern District of 

Virginia. See 2/28/13 FOIA Response.

Defendant then filed a Motion for Summary Judgment on June 3, 2013, accompanied by 

a declaration describing the agency’s search efforts and withholdings. See Hardy Decl. The 

matter is now fully briefed and ripe for decision.

II. Legal Standard

Summary judgment may be granted if “the movant shows that there is no genuine dispute 

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

56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. 

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the 

substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 

895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict 

for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 

U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely 
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disputed must support the assertion” by “citing to particular parts of materials in the record” or 

“showing that the materials cited do not establish the absence or presence of a genuine dispute, 

or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 

56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of 

material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

FOIA cases typically and appropriately are decided on motions for summary judgment. 

See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a 

court may grant summary judgment to a FOIA defendant based solely on information provided 

in an agency’s affidavits or declarations when they “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.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)

(citation omitted). 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) (internal 

quotation marks omitted). “Unlike the review of other agency action that must be upheld if 

supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the 

burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter 

de novo.’” Dep’t of Justice v. Reporters Com. for the Freedom of the Press, 489 U.S. 749, 755

(1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

III. Analysis

Defendant maintains that summary judgment is proper because its search was reasonably 

calculated to return relevant records, it released all reasonably segregable material, and its
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withholdings were proper under a number of FOIA exemptions. See Mot. at 2. Plaintiff raises 

three central challenges in response. First, Sennett claims that Defendant failed to conduct an 

adequate search for responsive records because it did not search its electronic surveillance 

indices. See Opp. at 11. Second, she asserts that the FBI failed to release reasonably segregable 

records. See id. And finally, she contends that Defendant improperly withheld multiple records 

pursuant to three specific FOIA exemptions. See id. at 1-11. Finding that the FBI has 

discharged almost all of its responsibilities on those three fronts, the Court will substantially 

grant Defendant’s Motion. 

A. Adequacy of Search

FOIA requires government agencies to describe their searches in enough detail for a court 

to determine whether the search was sufficiently exhaustive to satisfy the Act. Nation Magazine, 

Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995); Oglesby v. 

U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “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. 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)); see also

Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). “[T]he issue to be resolved is 

not whether there might exist any other documents possibly responsive to the request, but rather 

whether the search for those documents was adequate.” Weisberg v. Dep’t of Justice, 745 F.2d 

1476, 1485 (D.C. Cir. 1984) (emphasis in original). The adequacy of an agency’s search for 

documents requested under FOIA “is judged by a standard of reasonableness and depends, not 

surprisingly, upon the facts of each case.” Id. To meet its burden, the agency may submit 

affidavits or declarations that explain the scope and method of its search “in reasonable detail.” 
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Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). Absent contrary evidence, such affidavits or 

declarations are sufficient to show that an agency complied with FOIA. See id. “If, however, 

the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the 

agency is not proper.” Truitt, 897 F.2d at 542.

The sole issue Plaintiff raises with respect to the adequacy of the FBI’s search is that the 

Bureau did not look in its electronic surveillance (ELSUR) files for responsive records. See

Opp. at 11. Defendant maintains that it was not required to search this source because it was not 

reasonably likely that the ELSUR indices would contain responsive records. See Reply at 16-18. 

In so asserting, it provides additional information about the indices and the agency’s search, 

including:

• “The FBI’s Electronic Surveillance (‘ELSUR’) Indices, a separate 

system of records from the CRS, are used to maintain information 

on subjects whose electronic and/or voice communications have 

been intercepted as a result of electronic surveillance conducted by 

the FBI,” Reply, Att. (Second Declaration of David M. Hardy), ¶

6;

• “The ELSUR Indices are comprised of four types of records: 

Principal; Proprietary Interest; Intercept; and Reference records,” 

id., ¶ 7 (including sub-paragraphs providing further detail on each 

type of record); and

• “In responding to FOIA requests, the FBI searches those locations 

where it determines responsive records are likely to be found. Most 

FBI cases do not involve electronic surveillance, and so it is not 

reasonably likely that responsive records will be found in the 

ELSUR Indices in most instances. Accordingly, the FBI only 

searches those indices when specifically asked to do so by a 

requester or when there is some indication that there may be 

responsive records in the indices, such as when there are references 

in the investigative file to electronic surveillance.” 

Id., ¶ 8. 
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The declaration further explains that there was no reason to search the ELSUR indices 

here because “Plaintiff did not request that the FBI search the ELSUR Indices for responsive 

records,” id., ¶ 9; “[m]oreover, the FBI did not find any indication in the investigative files 

containing information responsive to plaintiff’s FOIA request that the investigations involved 

electronic surveillance. The video that plaintiff references in her response is a security video 

from the Four Seasons Hotel, not a video resulting from electronic surveillance conducted by the 

FBI.” Id., ¶ 10. 

Based on the facts here and Defendant’s explanation as to why it was unlikely that 

responsive records would be located in the electronic surveillance indices, the Court finds that 

the agency’s decision not to search this source was reasonable. See Am. Immigration Council v. 

U.S. Dep’t of Homeland Sec., 905 F. Supp. 2d 206, 214-215 (D.D.C. 2012) (agency’s 

explanation sufficient where it had “justifiably conclude[d]” that challenged source probably did 

not hold responsive records); Salas v. Office of Inspector Gen., 577 F. Supp. 2d 105, 110 

(D.D.C. 2008) (acknowledging agency was not required to search every records system and 

finding search adequate where “declarant adequately explains the agency’s reasons for limiting 

the search to the [specific] database”). A plaintiff’s conjecture regarding possible sources that 

have not been searched is not sufficient to undermine an agency’s position that responsive 

documents would not be contained in a particular database. See Nicholls v. U.S. Office of 

Personnel Mgmt., 863 F. Supp. 2d 4, 10 (D.D.C. 2012).

Because no other objections remain on this issue, Defendant is entitled to summary 

judgment on the adequacy of the search. 
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B. Segregability

Plaintiff’s second objection arises from the Hardy Declaration’s purported “fail[ure] to 

analyze the segregability of the redacted documents, other than in conclusory fashion.” Opp. at 

11. Defendant responds that it is entitled to a presumption of compliance with the segregability 

requirement and that Plaintiff has failed to provide the “quantum of evidence” necessary to rebut 

it. See Reply at 19. The Court agrees. 

While the government is “entitled to a presumption that [it] complied with the obligation 

to disclose reasonably segregable material,” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013),

this presumption of compliance does not obviate the government’s obligation to carry its 

evidentiary burden and fully explain its decisions on segregability. See Mead Data Cent., Inc. v. 

U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). The agency must provide “a 

detailed justification and not just conclusory statements to demonstrate that all reasonably 

segregable information has been released.” Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C.

2010) (internal quotation marks omitted); see also Armstrong v. Exec. Office of the President, 97 

F.3d 575, 578 (D.C. Cir. 1996) (determining government affidavits explained nonsegregability of 

documents with “reasonable specificity”). “Reasonable specificity” can be established through a 

“combination of the Vaughn index and [agency] affidavits.” Johnson v. Exec. Office for U.S. 

Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002).

The Hardy Declaration maintains:

• “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 

have been withheld from plaintiff. To further describe the 

information withheld could identify the very material which the

FBI seeks to protect,” Hardy Decl., ¶ 26;
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• “The coded, Bates-numbered pages together with this declaration 

demonstrate that all material withheld is exempt from disclosure

pursuant to FOIA exemptions, or is so intertwined with protected 

material that segregation is not possible without revealing the

underlying protected material,” id., ¶ 27;

• “The FBI has processed and released all segregable information

from documents responsive to plaintiff's FOIA/Privacy Act request 

that are subject to FOIA, and has properly withheld exempt 

information pursuant to FOIA Exemptions 1, 3, 5, 6, 7(A), 7(C), 

7(D), and 7(E),” id., ¶ 81; and

• “After extensive review of the documents at issue, I have 

determined that there is no further reasonably segregable 

information that can be released without revealing exempt

information.”

Id. 

Although some of this language may appear generic, having reviewed the redacted 

documents and the Hardy Declaration, the Court finds that no segregability problem exists here. 

The documents have careful and pinpointed redactions of names, words, clauses, and sentences. 

While a number of other documents have been withheld in their entirety, there is nothing to 

suggest that there is material that could have been released on these pages. See, e.g., Mot., Exh.

I (FBI’s Production of Records in Response to FOIA Request), part I, at 110 (explaining Sennett 

1660-1670 were being withheld in their entirety where numerous exemptions applied, including 

the exemption for pending enforcement proceedings, (7)(A)). The Bureau, moreover, deserves 

the benefit of the doubt when it has painstakingly segregated material on the produced 

documents the Court has reviewed. Because the Court finds that the FBI has produced all 

reasonably segregable materials and a supplemental declaration further addressing the issue of 

segregability is unnecessary, the Court grants Defendant’s Motion on this issue. 
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C. Propriety of Defendant’s Withholdings

Turning now to the applicability of the exemptions claimed, the Court will begin with 

some general FOIA law and then discuss each exemption separately.

1. Background

FOIA provides that “each agency, upon any request for records which (i) reasonably 

describes such records and (ii) is made in accordance with published rules . . . , shall make the 

records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Nine categories of 

information are exempt from FOIA’s broad rules of disclosure. 5 U.S.C. § 552(b)(1)-(9). These 

exemptions are to be narrowly construed, see Dep’t of Air Force v. Rose, 425 U.S. 352, 361 

(1976), and the reviewing court must bear in mind that FOIA mandates a “strong presumption in 

favor of disclosure.” Dep’t of State v. Ray, 502 U.S. 164, 173 (1991); Nat’l Ass’n of Home 

Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002). This Court, accordingly, can compel the 

release of any records that do not satisfy the requirements of at least one exemption. See

Reporters Com. for Freedom of the Press, 489 U.S. at 755.

FOIA was drafted with the objective of affording the public maximum access to most 

government records. See Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). The 

government, as a result, bears the burden of demonstrating that at least one exemption applies. 

See id. In order to assist a court in its de novo review of the withholdings and to allow the party 

seeking access to documents to engage in effective advocacy, the government must furnish 

“detailed and specific information demonstrating ‘that material withheld is logically within the 

domain of the exemption claimed.’” Campbell v. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 

1998) (quoting King v. U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)). This allows 

for “as full a public record as possible, concerning the nature of the documents and the 
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justification for nondisclosure.” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 

1384 (D.C. Cir. 1979). Time and again, courts in this Circuit have stressed that the government 

cannot justify its withholdings on the basis of summary statements that merely reiterate legal 

standards or offer “far-ranging category definitions for information.” King, 830 F.2d at 221; see

also Campbell, 164 F.3d at 30 (emphasizing that an agency’s explanations will not suffice if they 

“‘are conclusory, merely recit[e] statutory standards, or if they are too vague or sweeping’”)

(quoting Hayden, 608 F.2d at 1387). 

While FOIA’s individual exemptions impose their own tailored evidentiary burden, as a 

starting point, the government must meet five overarching requirements for each withholding. 

See King, 830 F.2d at 224. The government must: 

(1) [I]dentify the document, by type and location in the body of 

documents requested; (2) note that [a particular exemption] is 

claimed; (3) describe the document withheld or any redacted 

portion thereof, disclosing as much information as possible without 

thwarting the exemption’s purpose; (4) explain how this material 

falls within one or more of the categories . . . ; and [if the 

exemption requires a showing of harm] (5) explain how disclosure 

of the material in question would cause the requisite degree of 

harm. 

Id.

As the D.C. Circuit noted in Lykins v. Dep’t of Justice, 725 F.2d 1455 (D.C. Cir. 1984), 

the government’s documentary obligations not only enable the reviewing court to make an

informed and accurate determination, but they also allow the adversary system to operate 

effectively and encourage transparency by “forc[ing] the government to analyze carefully any 

material withheld.” Id. at 1463. Admittedly, this evidentiary burden is likely to create 

significant costs for government agencies as they respond to FOIA requests; however, “[t]he 
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costs must be borne . . . if the congressional policy embodied in FOIA is to be well served.” 

Senate of the Com. of Puerto Rico v. U.S. Dep’t of Justice, 823 F.2d 574, 587 (D.C. Cir. 1987).

Against this backdrop, the Court will now consider the specific exemptions challenged by 

Plaintiff. 

2. Challenged Exemptions

While Defendant relies on numerous exemptions, Plaintiff challenges withholdings 

pursuant to only three: Exemptions 1 (Classified Information), 3 (Information Protected by 

Statute), and 7(D) (Confidential Source Information). See Opp. at 1-11. Because Plaintiff raises 

no objection with respect to the remaining exemptions – namely, Exemptions 5 (Privileged 

Information), 6 and 7(C) (Clearly Unwarranted Invasion of Privacy and Unwarranted Invasion of 

Personal Privacy), 7(A) (Pending Enforcement Proceedings), and 7(E) (Law Enforcement 

Investigative Techniques and Procedures) – the Court will deem any challenges to documents 

withheld pursuant to those exemptions to be forfeited. See Hopkins v. Women’s Div., Gen. Bd. 

of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit 

that when a plaintiff files an opposition to a dispositive motion and addresses only certain 

arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to 

address as conceded.”), aff’d 98 F. App’x 8 (D.C. Cir. 2004).

a. Exemption 1

Plaintiff begins by attacking the withholding of materials pursuant to Exemption 1. This 

exemption applies to materials that are “specifically authorized under criteria established by an 

Executive order to be kept secret in the interest of national defense or foreign policy and . . . are 

in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). An agency 

may invoke Exemption 1 to withhold records “only if it complies with classification procedures 
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established by the relevant executive order and withholds only such material as conforms to the 

order’s substantive criteria for classification.” King, 830 F.2d at 214; see also Lesar v. Dep’t of 

Justice, 636 F.2d 472, 483 (D.C. Cir. 1980) (“To be classified properly, a document must be 

classified in accordance with the procedural criteria of the governing Executive Order as well as 

its substantive terms.”). 

While the Hardy Declaration discusses in detail how the FBI complied with the 

requirements of Exemption 1, see Hardy Decl., ¶¶ 31-39, the Court need not analyze such 

compliance. This is because all relevant documents covered by Exemption 1 were also withheld 

under Exemption 7(E): 

The classified information withheld on Sennett-1622, 1660-1670, 

and 1676-1682 contains detailed intelligence activity information 

gathered or compiled by the FBI about a specific individual or 

organization of national security interest. The disclosure of this 

information could reasonably be expected to cause serious damage 

to the national security, as it would: (a) reveal the actual 

intelligence activity or method utilized by the FBI against a 

specific target; (b) disclose the intelligence-gathering capabilities 

of the method; and (c) provide an assessment of the intelligence 

source penetration of a specific target during a specific period of 

time. This information is properly classified at the “Secret” level, 

withheld pursuant to E.O. 13526, § 1.4(c), and is exempt from 

disclosure pursuant to Exemption 1. The FBI also protected this 

information pursuant to FOIA Exemption 7(E), as discussed infra.

Id., ¶ 39 (emphasis added). Plaintiff does not separately challenge whether the documents were 

properly redacted or withheld pursuant to Exemption 7(E). Because there is an independent, 

unchallenged exemption upon which these few documents could be withheld, the Court will not 

consider the Exemption 1 challenge. 

b. Exemption 3

Exemption 3 covers records “specifically exempted from disclosure by statute . . . 

[provided that such statute either] (A)(i) requires that the matters be withheld from the public in 
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such a manner as to leave no discretion on the issue; or (A)(ii) establishes particular criteria for 

withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). 

Defendant invokes this exemption based on the Pen Register statute, 18 U.S.C. § 3123, and 

Federal Rule of Criminal Procedure 6(e), which governs grand jury information. Both the statute 

and the rule leave the Court no discretion. 

First, as to pen-register information, the FBI contends that it “properly applied 

Exemption 3 to withhold the identities and phone numbers of the individuals subject to pen 

registers in this case, because it is precluded from disclosing such information pursuant to 18 

U.S.C. § 3123.” See Hardy Decl., ¶ 41; see also id. n.7 (citing specific pages subject to this 

exemption). The nondisclosure provision of this statute states that 

[a]n order authorizing or approving the installation and use of a 

pen register or a trap and trace device shall direct that (1) the order 

be sealed until otherwise ordered by the court; and (2) the person 

owning or leasing the line or other facility to which the pen register 

or a trap and trace device is attached, or applied, or who is 

obligated by the order to provide assistance to the applicant, not 

disclose the existence of the pen register or trap and trace device or 

the existence of the investigation to the listed subscriber, or to any 

other person, unless or until otherwise ordered by the court.”

§ 3123(d). 

Plaintiff contends that this statute cannot support withholdings pursuant to Exemption 3. 

See Opp. at 4-7. She offers no authority, however, for such a position, see Opp. at 7, nor does 

she explain why other district courts have erred in holding the contrary. See, e.g., Brown v. FBI, 

873 F. Supp. 2d 388, 401 (D.D.C. 2012) (pen-register information properly withheld under 

exemption 3); Roberts v. FBI, 845 F. Supp. 2d 96, 101-102 (D.D.C. 2012) (same); Manna v. 

Dep’t of Justice, No. 93-81, 1994 WL 808070, at *6-7 (D.N.J. April 13, 1994) (same). 
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Even if this statute could protect such information, Plaintiff maintains Defendant should 

be ordered to produce a more detailed Vaughn declaration explaining whether the pen-register 

orders in question were under seal and specifying what material was being withheld pursuant to 

this exemption. See Opp. at 4-7. Both pieces of information, however, have already been set 

forth by the FBI. The Hardy Declaration clearly states that the pen-register information was 

“subject to a sealing order by the court.” See Hardy Decl., n.7. Additionally, it describes the 

material being withheld as information that would reveal “the identities and phone numbers of 

the individuals subject to pen registers in this case.” See id. ¶ 41. As the material Plaintiff seeks 

to have disclosed has already been provided, no supplementation is necessary. 

Second, the FBI relies on Federal Rule of Criminal Procedure 6(e), which bars the 

disclosure of matters occurring before a grand jury. See Fed. R. Crim. P. 6(e)(2)(B). Because it 

was affirmatively enacted by Congress, Rule 6(e) is recognized as a “statute” for Exemption 3 

purposes. See Fund for Constitutional Gov’t. v. Nat’l Archives & Records Serv., 656 F.2d 856, 

867 (D.C. Cir. 1981). The Rule’s grand-jury-secrecy requirement is applied broadly and 

embraces any information that “tend[s] to reveal some secret aspect of the grand jury’s 

investigation, [including] the identities of witnesses or jurors, the substance of testimony, the 

strategy or direction of the investigation, the deliberations or questions of jurors, and the like.” 

Lopez v. Dep’t. of Justice, 393 F.3d 1345, 1349 (D.C. Cir. 2005) (internal quotation marks 

omitted). In the absence of a statutory exception to the general presumption of grand jury 

secrecy, Rule 6 is “quite clear that disclosure of matters occurring before the grand jury is the 

exception and not the rule,” and “the rule’s ban on disclosure is for FOIA purposes absolute and 

falls within . . . Exemption 3.” Fund for Constitutional Gov’t., 656 F.2d at 868. 
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Defendant describes the documents withheld under this exemption in the following 

manner:

In the investigative files responsive to plaintiffs request, 

information that reveals matters occurring before a Federal Grand 

Jury has been withheld pursuant to Exemption 3, in conjunction 

with Rule 6(e). This information consists of the names of 

recipients of Federal Grand Jury subpoenas; information that 

identifies specific records subpoenaed by the Federal Grand Jury; 

and copies of specific records received in response to Federal 

Grand Jury subpoenas. Any disclosure of this information would 

clearly violate the secrecy of the grand jury proceedings and could 

reveal the inner workings of the Federal Grand Jury, and thus, the 

FBI is precluded from disclosing it. Accordingly, the FBI properly 

withheld this information pursuant to Exemption 3, in conjunction 

with Rule 6(e).

Hardy Decl., ¶ 42; see also id. n.8 (identifying pages withheld pursuant to this exemption).

Plaintiff contends that “the government did not provide any detail to allow this court to 

determine whether the specific records at issue in this case would in fact reveal the inner 

workings of the grand jury,” and she urges the Court to conduct an inquiry into whether such a 

nexus exists. See Opp. at 9. Additionally, Plaintiff maintains that the “special circumstances” 

exception to grand jury secrecy may require disclosure of these materials, as the information is 

“undoubtedly of historical interest.” See id. at 10. This exception – rooted in the court’s 

inherent supervisory authority over court records – has permitted the release of documents that

are of special “historical significance,” such as the grand jury testimony of President Richard 

Nixon. See In re Nichter, No. 12-MC-74, 2013 WL 2544410, at *5-7 (D.D.C. June 11, 2013)

(describing exception).

Defendant has supplemented its explanation regarding these documents in the Second 

Hardy Declaration as follows:

To clarify, documents obtained by the FBI independent of the 

grand jury were not withheld pursuant to Exemption 3, in 
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conjunction with Rule 6(e) of the Federal Rules of Civil Procedure. 

Rather, to reiterate what I stated in my previous declaration in this 

case, see Dkt. No. 18 at ¶ 42, the FBI relied on Exemption 3, in 

conjunction with Rule 6(e), to withhold records that were received 

in response to a grand jury subpoena because disclosure of such 

information – as well as the identities of persons and the specific 

records subpoenaed by the grand jury – would reveal the focus and 

scope of the grand jury’s investigation, thus revealing the inner 

workings of the grand jury and violating the secrecy of grand jury 

proceedings.

Id., ¶ 5. 

The documents Defendant describes fall squarely within this exemption because they 

would “tend to reveal some secret aspect of the grand jury’s investigation [of] such matters,”

Senate of Puerto Rico, 823 F.2d at 582 (internal quotation marks omitted), and are not merely 

“information coincidentally before the grand jury.” Fund for Constitutional Gov’t, 656 F.2d at

870; see also Light v. Dep’t of Justice, No. 12-1660, 2013 WL 3742496, 8 (D.D.C. July 17, 

2013) (records subpoenaed by grand jury exempt under Exemption 3); Georgacarakos v. FBI, 

908 F. Supp. 2d 176, 182 (D.D.C. 2012) (“information that identifies specific records or 

evidence subpoenaed by the Federal Grand Jury” protected under Exemption 3); Singh v. FBI, 

574 F. Supp. 2d 32, 45 (D.D.C. 2008) (finding records subpoenaed by grand jury were within 

scope of Exemption 3). 

Additionally, the Court rejects Plaintiff’s invitation to recognize the “special 

circumstances” doctrine here, as she has failed to provide the Court with any authority to suggest 

that the facts in this case implicate that rare exception. See, e.g., In re Nichter, 2013 WL 

2544410, at *5-7 (finding special circumstances did not support disclosure of materials related to 

grand jury proceeding); In re Shepard, 800 F. Supp. 2d 37, 40 (D.D.C. 2011) (cautioning that 

exception “applies only in exceptional circumstances, requiring a nuanced and fact-intensive 

assessment,” and “is not intended for indiscriminate application”).
18

The Court will thus grant judgment in Defendant’s favor as to this exemption.

c. Exemption 7(D) 

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

enforcement purposes . . . to the extent that the production of such law enforcement records or 

information . . . could reasonably be expected to disclose the identity of a confidential source . . . 

[who] furnished information on a confidential basis, and, in the case of a record or information 

compiled by criminal law enforcement authority in the course of a criminal investigation, 

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

confidential within the meaning of exemption 7(D) if the source provided information under an 

express assurance of confidentiality or in circumstances from which such an assurance could be 

reasonably inferred.” Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (internal quotation 

marks omitted). 

“[I]t is not enough for the [FBI] to claim that all sources providing information in the 

course of a criminal investigation do so on a confidential basis.” Roth v. Dep’t of Justice, 642 

F.3d 1161, 1184 (D.C. Cir. 2011). The analysis must be more searching. For example,

[w]hen no express assurance of confidentiality exists, courts 

consider a number of factors to determine whether the source 

nonetheless spoke with an understanding that the communication 

would remain confidential. These factors include the character of 

the crime at issue, the source’s relation to the crime, whether the 

source received payment, and whether the source has an ongoing 

relationship with the law enforcement agency and typically 

communicates with the agency only at locations and under 

conditions which assure the contact will not be noticed. Even 

when the FBI contends that a source received an express assurance 

of confidentiality, it must, in order to permit meaningful judicial 

review, present sufficient evidence that such an assurance was in 

fact given.

Id. (citations and internal quotation marks omitted). It is also important to note that, unlike 

Exemption 7(C), “Exemption 7(D) requires no balancing of public and private interests. If the 
19

FBI’s production of criminal investigative records ‘could reasonably be expected to disclose the 

identity of a confidential source’ or ‘information furnished by’ such a source, that ends the 

matter, and the FBI is entitled to withhold the records under Exemption 7(D).” Id. at 1184-85 

(citation omitted) (quoting 5 U.S.C. § 552(b)(7)(D)).

The Hardy Declaration acknowledges that there was no express assurance here; instead, it 

relies on inferred confidentiality. See Hardy Decl., ¶ 70. After describing generally the way in 

which confidential sources assist the FBI and the need for such sources to remain confidential, 

see id., ¶¶ 68-69, the Declaration then turns to a more detailed discussion of the specific 

information withheld here:

In Category (b)(7)(D)-1, the FBI protected the names, identifying 

information for, and information provided by third parties under 

circumstances in which confidentiality can be inferred. These third 

parties provided information concerning the activities of subjects 

who were of investigative interest to the FBI or other law 

enforcement agencies. These third party sources provided specific 

detailed information that is singular in nature concerning the 

activities of certain subjects regarding the FBI’s investigation. The 

disclosure of the identities of these sources and the information 

they provided could have disastrous consequences because 

disclosure could subject these third parties, as well as their 

families, to embarrassment, humiliation, and/or physical or mental 

harm. These third parties provided information of value to the FBI 

concerning its investigation, and in doing so, have placed 

themselves in harm’s way should their identity and cooperation 

with the FBI become known. Specifically, in the FBI’s 

experience, sources providing information to the FBI about 

extremist activities, such as anarchist extremism, do so at great 

peril to themselves and have faced retaliation and threats 

(including death threats) when their assistance to the FBI has been 

publicly disclosed. Under these circumstances, the third parties 

had reason to believe that their identities and the information they 

provided would not be publicly revealed by the FBI in response to 

FOIA or Privacy Act requests. Thus, the FBI implicitly granted 

these third parties confidentiality with respect to their cooperation 

in the investigation(s), and properly protected the sources’

identities and the information they provided pursuant to Exemption 

7(D).
20

Id., ¶ 70. 

While recognizing the FBI’s concerns in divulging too much information regarding its 

confidential sources, the Court agrees with Sennett that the details in this description “are so 

sparse that Plaintiff does not have” sufficient information to challenge whether the circumstances 

support an inference of confidentiality. See Opp. at 11. While the FBI has explained the 

character of the crime at issue, it has not provided any information on the other Roth factors. At 

a minimum, there must be some mention of the source’s relation to the crime. See Miller v. 

Dep’t of Justice, 872 F. Supp. 2d 12, 27 (D.D.C. 2012) (“[t]he nature of the crime investigated 

and informant’s relation to it are the most important factors in determining whether implied

confidentiality exists”). The Court appreciates the importance of protecting confidential sources 

and does not anticipate that the additional disclosures will be particularly burdensome. That 

said, the Court cannot sanction the withholdings under Exemption 7(D) as the record now stands. 

Defendant shall therefore release the documents withheld pursuant to this exemption or file a 

subsequent summary judgment motion supported by adequate declarations. 

D. Privacy Act

Although the FBI claimed the protection of Privacy Act Exemption j(2) in the documents 

released to Sennett, this exemption was not, in fact, used to justify the withholding of any 

information challenged here. See Hardy Decl., ¶ 25 (stating that “the FBI processed documents 

responsive to her request under the FOIA to achieve maximum disclosure”). Therefore, this 

Court does not reach the issue of the propriety of the FBI’s invocation of Privacy Act 

Exemption (j)(2).
21

IV. Conclusion

For the forgoing reasons, the Court will grant Defendant’s Motion for Summary 

Judgment in substantial part and deny it as to Exemption 7(D) only. A separate Order consistent 

with this Opinion will issue this day.

/s/ James E. Boasberg

JAMES E. BOASBERG

United States District Judge

Date: August 27, 2013