CLEMENTE v. FEDERAL BUREAU OF JUSTICE et al, No. 1:2008cv01252 - Document 81 (D.D.C. 2012)

Court Description: MEMORANDUM OPINION granting in part 51 defendants' motion for summary judgment and denying the remainder and 57 plaintiff's motion for summary judgment without prejudice. Signed by Judge Barbara Jacobs Rothstein on April 13, 2012. (lchhk1)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 7 8 9 10 ANGELA CLEMENTE, 11 No. 1:08-cv-01252 BJR Plaintiff, 12 v. 13 14 FEDERAL BUREAU OF INVESTIGATION, et al., 15 ORDER GRANTING RENEWED MOTIONS FOR SUMMARY JUDGMENT IN PART AND DENYING THE REMAINDER WITHOUT PREJUDICE Defendants. 16 17 18 Angela Clemente brings this suit under the Freedom of Information Act ( FOIA ), 5 U.S.C. § 552, against the Federal Bureau of Investigation, a component of 19 20 the U.S. Department of Justice, and other unnamed agencies (collectively, the FBI ). 21 Before the Court are defendants renewed motion for summary judgment [Dkt. # 51] and 22 plaintiff s renewed cross-motion for summary judgment [Dkt. # 57]. For the reasons set 23 forth below, the Court grants the FBI s motion in part and denies the remainder and Ms. 24 Clemente s motion without prejudice. 25 ORDER-1 I. BACKGROUND 1 2 The facts underlying this case, described at greater length in an earlier opinion, 3 see Clemente v. F.B.I., 741 F. Supp. 2d 64 (D.D.C. 2010), are recited briefly as relevant 4 here. 5 6 Angela Clemente has spent many years researching the late Gregory Scarpa, Sr., a high-ranking Mafia member who served as an FBI informant. Id. at 71. The relationship 7 between Mr. Scarpa, his FBI handler, and the commission of several violent crimes has 8 9 been the subject of considerable reporting, see, e.g., Fredric Dannen, The G Man and the 10 Hit Man, NEW YORKER, Dec. 16, 1996; John Connolly, Who Handled Who?, NEW YORK, 11 Dec. 2, 1996, at 46, and at least one prosecution, see People v. DeVecchio, N.Y. Misc. 12 LEXIS 7827 (N.Y. Sup. Ct. Nov. 1, 2007). 13 14 In April 2008, Ms. Clemente sent a letter to the records division of FBI headquarters requesting Mr. Scarpa s unredacted FBI file. Clemente, 741 F. Supp. 2d at 15 71. She sent another copy of the letter that May. Id. In June, the FBI confirmed that it 16 17 had received both of Ms. Clemente s letters and was processing them as FOIA requests. 18 Id. 19 Clemente wanted to clarify her request for documents, which was directed to any 20 informant file on Mr. Scarpa, including in particular any Top Echelon ( TE ) Informant 21 File. Id. (quoting 2d Am. Compl., Ex. 4 at 1). Counsel further requested that the 22 In July, Ms. Clemente s counsel informed the FBI by certified mail that Ms. documents be placed in a particular order, that Ms. Clemente be sent copies of only the 23 24 25 first 500 pages of responsive documents, and that she be granted a waiver of the copying and processing fees. Id. at 71 72. ORDER-2 1 Ms. Clemente says that, on the same date in July, her counsel sent a second letter 2 to the FBI requesting all records on or pertaining to Gregory Scarpa wherever they may 3 be located or filed in whatever form or format they are maintained. Id. (quoting 2d Am. 4 Compl., Ex. 9 at 1). This second letter did not request that the records be placed in any 5 particular order, nor did it request that Ms. Clemente be sent only 500 pages of 6 responsive documents. Id. 7 Ms. Clemente filed this action on July 21, 2008. In October of that year, David 8 9 M. Hardy of the FBI s records management division informed Ms. Clemente that the 10 agency had located approximately 1,170 pages of documents potentially responsive to her 11 request, and that her application for a fee waiver had been denied. Id. Ms. Clemente sent 12 the FBI a check to cover the duplication fees for all of those documents and appealed the 13 denial of a fee waiver. Id. 14 That November, the FBI released 500 pages of documents to Ms. Clemente and 15 filed a motion for summary judgment, attaching an affidavit that classified the redactions 16 17 made from all 500 pages. Id. at 73; Declaration of David M. Hardy (attached to Defs. 18 Mot. for Summ. J.) ( 1st Hardy Decl. ). In March 2009, the FBI released 653 additional 19 pages of records. Clemente, 741 F. Supp. 2d at 73. Ms. Clemente filed a cross-motion 20 for summary judgment. 21 judgment several months later, including an affidavit classifying the redactions made 22 Id. Defendants filed a supplemental motion for summary from a 55-page sample of the additional pages, which had been selected by Ms. 23 24 25 Clemente. Second Declaration of David M. Hardy (attached to Defs. Supplemental Mot. for Summ. J.) ( 2d Hardy Decl. ), at ¶ 4. ORDER-3 1 On September 28, 2010, U.S. District Court Judge Paul L. Friedman ruled on 2 those motions. Judge Friedman found that Ms. Clemente was entitled to a waiver of the 3 fees associated with the search for and duplication of the records she requested. 4 Clemente, 741 F. Supp. 2d at 74 77 (granting fee waiver under 5 U.S.C. § 5 552(a)(4)(A)(iii)). He also found that the FBI had conducted an adequate search for 6 documents responsive to Ms. Clemente s FOIA request. First, Judge Friedman ruled that 7 the FBI was not required to comply with the requests contained in Ms. Clemente s 8 9 second July 2008 letter, because the FBI had submitted a sworn statement that it had 10 never received the letter and Ms. Clemente had produced no evidence to the contrary. Id. 11 at 78. Although Ms. Clemente presented the second letter in litigation, she was required 12 to exhaust her administrative remedies before seeking relief in court. Id. at 78 79. Next, 13 Judge Friedman determined that Ms. Clemente s request for any informant file on Mr. 14 Scarpa could reasonably be read as limited to informant files whose primary subject was 15 Mr. Scarpa, and that the FBI had conducted a search that was reasonably designed to 16 17 locate such files. Id. at 79. Finally, Judge Friedman ruled that the FBI was not required 18 to search for files in its New York field office, nor in any system beyond its Central 19 Records System. Id. at 78 79. The FBI could limit its search to its headquarters because 20 the request was only submitted to that location, id. at 80 (citing 28 C.F.R. §§ 16.3, 16.41; 21 Fischer v. U.S. Dep t of Justice, 596 F. Supp. 2d 34, 43 n.9 (D.D.C. 2009)), and could 22 search only its Central Records System because it had not received a request to search 23 24 25 any further, id. at 78, and, implicitly, because such a search was reasonably calculated to recover all relevant documents, id. at 77 (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep t of State, 897 F.2d 540, 542 ORDER-4 1 (D.C. Cir. 1990))). Judge Friedman further ruled that the FBI was not obligated to 2 release the documents underlying two placeholder pages, because one set of documents 3 was housed in the New York field office, where the FBI was not required to search for 4 files, and the other referred only to a document that had been mis-indexed and therefore 5 was not a part of Mr. Scarpa s informant file. Id. at 79 80. Judge Friedman proceeded to 6 address the FBI s justifications for the redactions it had made from the documents that it 7 released to Ms. Clemente. 8 9 Judge Friedman first reviewed the redactions made pursuant to FOIA Exemption 10 2, which applies to information related solely to the internal personnel rules and 11 practices of an agency. 5 U.S.C. § 552(b)(2). Under the then-current law of this circuit, 12 information was covered by Exemption 2 if it was used for predominantly internal 13 purposes, Crooker v. Bureau of Alcohol Tobacco & Firearms, 670 F.2d 1051, 1073 14 (D.C. Cir. 1981) (en banc), and either its disclosure [might] risk circumvention of 15 agency regulation or it relate[d] to trivial administrative matters of no genuine public 16 17 interest, Schwaner v. Dep t of Air Force, 898 F.2d 793, 794 (D.C. Cir. 1990) (internal 18 quotation marks and citations omitted). Judge Friedman ruled that (1) FBI informant 19 codes and the files numbers associated with those codes were properly withheld under 20 Exemption 2 because [t]he means by which the FBI refers to informants in its 21 investigative files is a matter of internal significance in which the public has no 22 substantial interest, Clemente, 741 F. Supp. 2d at 82 (quoting Lesar v. Dep t of Justice, 23 24 25 636 F.2d 472, 486 (D.C. Cir. 1980)) (brackets in Clemente); that (2) the FBI could not withhold references to the number of FBI informants reporting on Mafia issues if those references were of only historical significance, id. at 82 83; that (3) the FBI could not ORDER-5 1 withhold references to the dispensation of operational funds, id. at 83; and that (4) the 2 Vaughn index submitted by the FBI provided the Court with no means by which it can 3 determine whether the information withheld [on the grounds that it] relates to techniques 4 whose disclosure could result in evasion of the law, actually presented that risk, id. 5 6 Judge Friedman went on to examine the redactions made under FOIA Exemption 7, which protects records or information compiled for law enforcement purposes, the 7 disclosure of which would cause an enumerated harm. See 5 U.S.C. § 552(b)(7). Judge 8 9 Friedman concluded that because the records in Mr. Scarpa s file pertain to the 10 investigation of the activities of subject s involvement as a [Top Echelon] informant for 11 the FBI and his involvement in [La Cosa Nostra], Clemente, 741 F. Supp. 2d at 84 12 (quoting 1st Hardy Decl. ¶ 40), they were compiled for law enforcement purposes 13 within the meaning of FOIA. 14 He then considered whether the FBI had demonstrated that disclosure would cause one of the harms against which Exemption 7 protects. Judge 15 Friedman concluded that the agency s declarations were insufficiently detailed to allow 16 17 the court to determine whether certain redacted information could reasonably be 18 expected to constitute an unwarranted invasion of personal privacy, 5 U.S.C. § 19 552(b)(7)(C). Clemente, 741 F. Supp. 2d at 86. He ordered that [i]n each instance in 20 which it is not clear from context that information redacted as subject to Exemption 7(C) 21 reveals a name or other basic identifying information, such as an address and 22 particularly where a substantial amount of text has been redacted the FBI must 23 24 25 [provide] individualized and more detailed descriptions of the information not disclosed. Id. As to Exemption 7(D), which protects confidential sources and the information that they provide, Judge Friedman approved the withholding of the source codes that ORDER-6 1 identified confidential informants, as well as the identities of informants to whom no 2 source code was assigned. Id. at 87. Finally, Judge Friedman found that the FBI could 3 not rely upon the vaguely worded categorical description it has provided, id. at 88, to 4 justify the withholding of information describing techniques and procedures used in 5 law enforcement investigations regarding the handling of confidential informants, id. 6 (quoting 1st Hardy Decl. ¶ 66), under Exemption 7(E). Rather, he ruled, the FBI must 7 provide evidence from which the Court can deduce something of the nature of the 8 9 techniques in question, id., before the Court could conclude that such disclosure could 10 reasonably be expected to risk circumvention of the law, 5 U.S.C. § 552(b)(7)(E). Judge 11 Friedman also ruled that under Exemption 7(E), as under Exemption 2, the FBI could 12 withhold references to the number of FBI informants currently reporting to the FBI on 13 Mafia issues, but not [r]eferences to the number of informants operative in the 1960s. 14 Clemente, 741 F. Supp. 2d at 88. He did not address whether the symbol and file 15 numbers of confidential sources could be withheld under Exemption 7(D), because he 16 17 18 had already ruled that those categories of information were properly withheld under Exemption 2. Id. at 87. 19 Judge Friedman granted summary judgment to Ms. Clemente on the issue of the 20 fee waiver, and denied without prejudice the parties motions for summary judgment on 21 the remaining questions. He directed the FBI to supplement its Vaughn index and 22 instructed the parties that if they could agree on a representative sample of documents 23 24 25 ORDER-7 1 2 for which the FBI will produce a more detailed Vaughn index, they should do so. Id. at 89.1 3 The parties agreed that the FBI would produce a new Vaughn index of a 4 representative sample of documents selected by plaintiff, who submitted a list of 5 approximately 192 pages for this purpose. 6 Fourth Declaration of David M. Hardy (attached to Defs. Renewed Mot. For Summ. J.) ( 4th Hardy Decl. ), at ¶ 9. The FBI 7 reprocessed this sample of pages, releasing some information that it had previously 8 9 withheld and changing its justifications for some redactions that it maintained. In 10 accordance with Judge Friedman s decision, the agency released the amounts of money 11 paid to informants, which had been redacted from 51 of the 192 sample pages, id. ¶ 11 12 n.2, and historical information regarding the number of informants reporting on Mafia 13 issues, which had been redacted from 11 pages, id. ¶ 11 n.3. (All 11 of those pages had 14 also contained redactions of the sums paid to informants. Compare id. ¶ 11 n.2 with id. ¶ 15 11 n.3.) The FBI also made what it describes as additional discretionary releases of 16 17 information previously redacted from 26 pages. Id. ¶ 10. After defendants filed their renewed motion for summary judgment and plaintiff 18 19 filed her renewed cross motion, the case was reassigned to this district judge. 20 II. LEGAL STANDARDS 21 a. The Freedom of Information Act 22 FOIA was enacted so that citizens could discover what their government is up 23 24 25 to. U.S. Dep t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989). The basic purpose of FOIA is to ensure an informed citizenry, vital to the 1 A Vaughn index is simply a declaration or affidavit submitted in a FOIA case, so called after the case of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). ORDER-8 1 functioning of a democratic society, needed to check against corruption and to hold the 2 governors accountable to the governed. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 3 214, 242 (1978). FOIA therefore seeks to permit access to official information long 4 shielded unnecessarily from public view and attempts to create a judicially enforceable 5 public right to secure such information from possibly unwilling official hands. Dep t of 6 the Air Force v. Rose, 425 U.S. 352, 361 (1976) (quoting EPA v. Mink, 410 U.S. 73, 80 7 (1973)). FOIA is broadly conceived, Mink, 410 U.S. at 80, and its dominant 8 9 10 objective is disclosure, not secrecy, U.S. Dep t of Def. v. FLRA, 510 U.S. 487, 494 (1994) (quoting Rose, 425 U.S. at 361). 11 An agency may withhold information responsive to a FOIA request only if the 12 information falls within an enumerated statutory exemption. 5 U.S.C. § 552(b). These 13 exemptions are explicitly exclusive, U.S. Dep t of Justice v. Tax Analysts, 492 U.S. 14 136, 151 (1989) (quoting FAA Administrator v. Robertson, 422 U.S. 255, 262 (1975)), 15 and have been consistently given a narrow compass, id. The agency bears the burden 16 17 of justifying any withholding, and the Court reviews the agency claims of exemption de 18 novo. See Bigwood v. U.S. Agency for Int l Dev., 484 F. Supp. 2d 68, 74 (D.D.C. 2007) 19 (citing 5 U.S.C. § 552(a)(4)(B)). 20 documents . . . an agency cannot justify withholding an entire document simply by 21 showing that it contains some exempt material. Krikorian v. Dep t of State, 984 F.2d 22 Because the focus of FOIA is information, not 461, 467 (D.C. Cir. 1993) (citation and internal quotation marks omitted). Instead, FOIA 23 24 25 requires that federal agencies provide to a requester all non-exempt information that is reasonably segregable from, 5 U.S.C. § 552(b) that is, not inextricably intertwined ORDER-9 1 2 with, Mead Data Central, Inc. v. U.S. Dep t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) (citations and internal quotation marks omitted) exempt information. 3 b. Summary Judgment 4 FOIA cases are typically and appropriately decided on motions for summary 5 judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Defenders of Wildlife v. 6 U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Rushford v. Civiletti, 485 F. 7 Supp. 477, 481 n.13 (D.D.C. 1980). A motion for summary judgment should be granted 8 9 only if the movant shows that there is no genuine dispute as to any material fact and the 10 movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). A material fact 11 is one that might affect the outcome of the suit under the governing law. Anderson v. 12 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must support its factual 13 positions by citing to particular parts of materials in the record, including depositions, 14 documents, electronically stored information, affidavits or declarations, stipulations . . . , 15 admissions, interrogatory answers, or other materials. FED. R. CIV. P. 56(c)(1)(A); see 16 17 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Factual assertions in the moving 18 party s affidavits or declarations may be accepted as true unless the opposing party 19 submits its own affidavits, declarations, or documentary evidence to the contrary. Neal v. 20 Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). 21 22 In a FOIA case, an agency is entitled to summary judgment if it can demonstrate that there are no material facts in dispute as to the adequacy of its search for or 23 24 25 production of responsive records. Nat l Whistleblower Ctr. v. U.S. Dep t of Health & Human Servs., 2012 WL 1026725, at *4 (D.D.C. Mar. 28, 2012). An agency must show that any responsive information it has withheld was either exempt from disclosure under ORDER-10 1 one of the exemptions enumerated in 5 U.S.C. § 552(b), or else inextricably intertwined 2 with exempt information, Mead Data, 566 F.2d at 260 (citations and internal quotation 3 marks omitted). Because FOIA challenges necessarily involve situations in which one 4 party (the government) has sole access to the relevant information, and that same party 5 bears the burden of justifying its disclosure decisions, the courts . . . require the 6 government to provide as detailed a description as possible without, of course, 7 disclosing the privileged material itself of the material it refuses to disclose. Oglesby 8 9 v. U.S. Dep t of Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996). This justification is typically 10 contained in a declaration or affidavit, referred to as a Vaughn index after the case of 11 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). An agency s affidavits or declarations 12 are presumed to be submitted in good faith. See SafeCard Servs., Inc. v. S.E.C., 926 F.2d 13 1197, 1200 (D.C. Cir. 1991). 14 There is no set formula for a Vaughn index, because the critical elements of the 15 Vaughn index lie in its function, and not in its form. Kay v. FCC, 976 F. Supp. 23, 35 16 17 (D.D.C. 1997). The purpose of a Vaughn index is to permit adequate adversary testing 18 of the agency s claimed right to an exemption, Nat l Treasury Emps. Union v. U.S. 19 Customs Service, 802 F.2d 525, 527 (D.C. Cir. 1986) (citing Mead Data Central, 566 20 F.2d at 251), and so the index must contain an adequate description of the records and 21 a plain statement of the exemptions relied upon to withhold each record, Nat l Treasury 22 Emps. Union, id. at 527 n.9. 23 III. ANALYSIS 24 25 The FBI asserts that it has disclosed all responsive, non-exempt information to Ms. Clemente, and that, as such, it is entitled to judgment as a matter of law. First, it ORDER-11 1 contends that its search for responsive documents was reasonable. Second, the Bureau 2 argues that it has only withheld information pursuant to an applicable FOIA exemption, 3 and that all segregable, non-exempt information has been released. The FBI asks the 4 Court to grant summary judgment in its favor. 5 6 Ms. Clemente, however, contends that the FBI s search for documents responsive to her FOIA request was inadequate, and that it has not met the burden of proof on its 7 exemption claims. She therefore asks the Court to order the Bureau to reprocess the 8 9 10 entire set of responsive documents. The Court addresses each of these arguments in turn. a. Adequacy of the FBI s Search for Responsive Documents 11 Ms. Clemente first argues that the FBI has not conducted an adequate search for 12 responsive documents. She presses the Court to reconsider Judge Friedman s ruling 13 which he affirmed in denying her motion for reconsideration that the FBI was not 14 required to search its New York field office. Ms. Clemente challenges the reliance on 15 Fischer v. U.S. Dep t of Justice, 596 F. Supp. 2d 34 (D.D.C. 2009), and refers the Court 16 17 instead to Campbell v. U.S. Dep t of Justice, 164 F.3d 20 (D.C. Cir. 1998). But, as Judge 18 Friedman held in denying her motion for reconsideration [Dkt. # 61], [n]othing in 19 Campbell suggests that the Court reached the wrong result on the adequacy-of-search 20 issue. Campbell concerned a request submitted to an FBI field office in 1988; after an 21 exchange of correspondence, the FBI produced documents from both its field and 22 national offices. 164 F.3d at 26. To locate those records, the FBI searched its Central 23 24 25 Records System index, but did not search either a separate electronic surveillance index nor for duplicate tickler files. The Campbell court ruled that the FBI was required to conduct those searches because in searching its Central Records System the Bureau had ORDER-12 1 discovered information suggesting that such searches would be fruitful. Id. at 28 29. 2 Campbell did not address the question of whether the FBI would have been required to 3 search its New York office if the FOIA request had not been submitted there. Nor did the 4 case concern a request brought under the current regulations which, as discussed below, 5 require requests for documents held at FBI field offices to be submitted to those offices. 6 Subject to exceptions not relevant here, FOIA requests must be made in 7 accordance with an agency s published rules stating the time, place, fees (if any), and 8 9 procedures to be followed. . . . Fischer, 596 F. Supp. 2d at 43 n.9 (quoting 5 U.S.C. § 10 552(a)(3)(A)). Since 1998, the regulations governing requests for FBI files have required 11 that persons seeking records held by a field office of the Federal Bureau of Investigation 12 (FBI) . . . must write directly to that FBI . . . field office address. 28 C.F.R. § 16.3(a) 13 (2012) (language first introduced by Revision of Freedom of Information Act and Privacy 14 Act Regulations, 63 Fed. Reg. 29,591, 25,594 (June 1, 1998)). This requirement has been 15 recognized by the D.C. Circuit. Negley v. FBI, 169 Fed. Appx. 591, 592 (D.C. Cir. 2006) 16 17 (per curiam); Piccolo v. Exec. Office for U.S. Attorneys, 93 Fed. Appx. 235, 236 (D.C. 18 Cir. 2004) (per curiam) ( Appellant next argues that the court should not have granted 19 summary judgment for the FBI concerning the adequacy of the search because the 20 Bureau searched only its headquarters, not its field offices. The scope of the search was 21 appropriate, however, under 28 C.F.R. []§ 16.3(a) . . . . ). Judges in this district have 22 repeatedly invoked it in rejecting the argument that Ms. Clemente makes here. See, e.g., 23 24 25 Wiesner v. FBI, 668 F. Supp. 2d 157, 161 (D.D.C. 2009); Servicemembers Legal Def. Network v. U.S. Dep t of Def., 471 F. Supp. 2d 78, 85 (D.D.C. 2007); Ray v. FBI, 441 F. ORDER-13 1 2 Supp. 2d 27, 32 (D.D.C. 2006); Hidalgo v. FBI, 2005 WL 6133690, at *1 n.2 (D.D.C. Sept. 29, 2005); Maydak v. U.S. Dep t of Justice, 254 F. Supp. 2d 23, 44 (D.D.C. 2003). 3 Ms. Clemente is of course free to submit a request to the FBI s New York office, 4 but that office was not required to respond to the request at issue here. The Court grants 5 summary judgment in favor of the FBI on the adequacy-of-search issue and moves on to 6 consider the adequacy of the agency s production. 7 b. Need for Reprocessing of Documents 8 9 Ms. Clemente goes on to argue that the FBI has withheld information that is 10 neither exempt from disclosure under 5 U.S.C. § 552(b) nor inextricably intertwined 11 with exempt portions. Mead, 566 F.2d at 260 (citations and internal quotation marks 12 omitted). In support of its renewed motion for summary judgment, the FBI has submitted 13 a Vaughn index describing the redactions made from a sample of the responsive 14 documents it has identified 192 pages out of a total of 1,153. 15 Representative sampling is an appropriate procedure to test an agency s FOIA 16 17 exemption claims when a large number of documents are involved. Bonner v. U.S. 18 Dep t of State, 928 F.2d 1148, 1151 (D.C. Cir. 1991); see also Meeropol v. Meese, 790 19 F.2d 942, 958 (D.C. Cir. 1986); Weisberg v. U.S. Dep t of Justice, 745 F.2d 1476, 1490 20 (D.C. Cir. 1984). Representative sampling allows the court and the parties to reduce a 21 voluminous FOIA exemption case to a manageable number of items that can be evaluated 22 individually through a Vaughn index or in camera inspection. If the sample is well- 23 24 25 chosen, a court can, with some confidence, extrapolate its conclusions from the representative sample to the larger group of withheld materials. Bonner, 928 F.2d at ORDER-14 1 2 1151 (D.C. Cir. 1991) (quoting Fensterwald v. CIA, 443 F. Supp. 667, 669 (D.D.C. 1977)). 3 When presented with a representative sample, a court considers the documents 4 produced or described with the understanding that [t]hey count not simply for 5 themselves, but for presumably similar non-sample documents. 6 Id. at 1152. An agency s admission that information was improperly redacted from documents in the 7 representative sample may suggest that similar redacting errors could be found in the 8 9 non-sample documents. See id. at 1152 54; Meeropol, 790 F.2d at 959 60. If, however, 10 the court reviewing the sample uncovers no excisions or withholding improper when 11 made, then the agency s action ordinarily should be upheld. Bonner, 928 F.2d at 1153 12 (emphasis added). Neither [t]he fact that some documents in a sample set become 13 releasable with the passage of time, Bonner, 928 F.2d at 1153, nor [t]he fact that there 14 are documents which while properly withheld at the time the decision to withhold was 15 made were nevertheless not exempt under new standards indicates any error on the part 16 17 of the agency, Meeropol, 790 F.2d at 959. See also Bonner, 928 F.2d at 1152 ( To 18 require an agency to adjust or modify its FOIA responses based on post-response 19 occurrences could create an endless cycle of judicially mandated reprocessing. ). The 20 Court therefore examines the Vaughn index of the representative sample in order to 21 determine whether it suggests that the entire set of responsive documents was properly 22 processed under the legal standards applicable at the time of the processing. 23 24 25 Judge Friedman s order held that the FBI could not withhold references to the number of FBI informants reporting on Mafia issues if those references were of only historical significance, Clemente, 741 F. Supp. 2d at 82 83, nor references to the ORDER-15 1 dispensation of operational funds, id. at 83. This holding applied to the entire set of 2 responsive documents, but the FBI only released that information from the sample 3 documents that it reprocessed. After reprocessing those documents, the FBI released the 4 sums dispensed as operational funds during law enforcement investigations from fifty- 5 one documents in the sample. 4th Hardy Decl. ¶ 11 n.2. The Bureau released references 6 to the number of informants reporting on Mafia issues from eleven sample documents. 7 4th Hardy Decl. ¶ 11 n.3. It has not released any information from non-sample 8 9 documents. 10 The FBI made twenty-six additional disclosures from twenty-three documents in 11 the representative sample. It describes these disclosures as discretionary releases. 4th 12 Hardy Decl. ¶ 10. The discretionary disclosures included the names of fifteen deceased 13 individuals contained in twenty-one documents, as well as the names of Scarpa s wife 14 and eldest son, which the FBI determined to be part of the public record, a technical 15 source symbol number, information regarding [an] informant s position within [the] 16 17 organization and the resulting information provided by the informant, each of which was 18 released from one sample document, and identifying information regarding [a] payment 19 pick-up location, which was released from two. 20 explicitly concede that these documents were improperly withheld, it describes the 21 releases as having been made in response to this Court s Memorandum Opinion of 22 Id. Although the FBI does not September 28, 2010, Defs. Reply Br. [Dkt. # 63] at 2. 23 24 25 Ms. Clemente argues that these excisions were improper when made, Bonner, 928 F.2d at 1153, and that similar errors would therefore likely be found if the redactions made from the the non-sample documents were re-examined. ORDER-16 Her argument is 1 persuasive. Redactions were removed in explicit response to Judge Friedman s order 2 from 26.5% of the sample documents. The D.C. Circuit has said that an error rate of 3 even 25% is unacceptably high. Meeropol, 790 F.2d at 960. 4 There is no merit to the FBI s argument that Judge Friedman s decision in this 5 case was the sort of post-response occurrence that should not trigger judicially 6 mandated reprocessing. Bonner, 928 F.2d at 1152. The crucial question is whether the 7 redactions were proper under the standards applicable at the time those redactions were 8 9 made. See Bonner, 928 F.2d at 1153. Judge Friedman s decision answered that question 10 No with respect to historical references to the number of FBI informants reporting on 11 Mafia issues and to the dispensation of operational funds. Id. at 83. That information 12 must therefore be released from all responsive documents. 13 14 Judge Friedman also noted that the FBI had provided no evidence of any attempt to ascertain the life status of the individuals whose information it redacted on privacy 15 grounds. Id. at 85. He further ordered the FBI to supplement its Vaughn index with 16 17 individualized and more detailed descriptions of the information not disclosed pursuant 18 to Exemption 7(C) [i]n each instance in which it is not clear that from context that 19 information [so] redacted . . . reveals a name or other basic identifying information, id. 20 at 86 (mentioning, for example, pages 404, 418, 703, 744, 924, and 942 of the responsive 21 documents). And he ordered the FBI to provide evidence from which the Court can 22 deduce something of the nature of the [investigative] techniques that were redacted 23 24 25 pursuant to Exemption 7(E). Id. at 88. Reviewing the current Vaughn index, the Court notes that the FBI has not said how it determined the life status of individuals named or identified in the sample documents. ORDER-17 (That it released the names of certain dead 1 individuals does suggest that it made such a determination.) There is, moreover, no 2 indication that the Bureau applied this method to determine the life status of individuals 3 identified in the non-sample documents. The FBI has not provided individualized and 4 more detailed descriptions of the large portions of text redacted pursuant to Exemption 5 7(C). Nor has it provided enough detail for the Court to determine whether the disclosure 6 of information redacted pursuant to Exemption 7(E) could reasonably be expected to 7 risk circumvention of the law. 5 U.S.C. § 552(b)(7)(E). The Bureau should address 8 9 these deficiencies if it renews its motion for summary judgment. IV. CONCLUSION 10 11 Representative sampling in FOIA cases allows the Court to reach a conclusion 12 about the entire set of responsive documents through a careful examination of a subset of 13 those documents. Sampling works on the assumption that all documents have been 14 handled in the same way, that the documents in a representative sample count not 15 simply for themselves, but for presumably similar non-sample documents. Bonner, 928 16 17 F.2d at 1152. That assumption has been frustrated here, because the FBI has released 18 certain types of information from the sample documents while withholding it from the 19 rest. The Court therefore orders the non-sample documents to be reprocessed so that all 20 non-exempt information can be released to Ms. Clemente. 21 22 23 24 25 ORDER-18 1 For the reasons stated above, the FBI s motion for summary judgment is 2 GRANTED as to the adequacy of its search for documents and DENIED without 3 prejudice as to the remaining issues. Ms. Clemente s cross-motion is DENIED without 4 prejudice. 5 SO ORDERED this 13th day of April 2012. 6 7 Barbara Jacobs Rothstein United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORDER-19

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