United States District Court, D. New Hampshire
McCafferty United States District Judge.
Villar, a prisoner, brings this suit pursuant to the Freedom
of Information Act, 5 U.S.C. § 552 (“FOIA”),
challenging the refusal of the Federal Bureau of
Investigation (“FBI”) to disclose certain
documents and information that he requested pursuant to that
statute. The FBI and Villar have filed cross motions for
movant is entitled to summary judgment if it “shows
that there is no genuine dispute as to any material fact and
[that it] is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In reviewing the record, the court
construes all facts and reasonable inferences in the light
most favorable to the nonmovant. Kelley v. Corr. Med.
Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013).
“Where, as here, the parties have filed cross motions
for summary judgment, the court applies the same standard
applicable to all summary judgment motions, but considers the
motions separately.” Citizens for a Strong New
Hampshire, Inc. v. I.R.S., No. 14-CV-487-LM, 2015 WL
5098536, at *3 (D.N.H. Aug. 31, 2015).
January 2008, Villar was convicted of armed robbery and
conspiracy to commit armed robbery. Following unsuccessful
appeals and petitions for habeas corpus, Villar sent the FBI
a Freedom of Information Act and Privacy Act request letter,
in which he requested all records or data in the FBI's
possession stored “specifically under my name and /or
an identifier assigned to my name.” Doc. no. 43-3 at 1.
Under a section in the letter entitled “SPECIFIC
REQUESTS, ” Villar requested several documents relating
to Shauna Harrington, a witness who testified at his criminal
trial. That request included, among other things, interview
notes, police reports, and criminal history about Harrington
and any records of benefits or inducements that the
government provided Harrington in exchange for her testimony.
Doc. no. 43-3 at 3.
Villar's request for records concerning Harrington could
have included documents other than those covered by
Villar's main request for the documents in his file, the
FBI opened two separate requests. See Doc. no. 43 at 3. The
first request covered the records related to Villar or stored
in his file (the “Villar Request”). The second
request concerned the FBI's records about Harrington (the
response to the Harrington Request, and pursuant to its
policy for requests about third parties, the FBI issued a
conditional “Glomar response.” In that response,
the FBI refused to search for records about Harrington unless
Villar provided express authorization from Harrington, proof
of Harrington's death, or a “clear demonstration
that the public interest in disclosure outweighs personal
privacy interests and a significant public benefit would
result from the disclosure of the requested records.”
Doc. no. 43-4 at 1. In support of its refusal, the FBI cited
the Privacy Act, 5 U.S.C. § 552a, which, it asserted,
prohibited it from disclosing records about third parties.
Because Villar did not provide the required information, the
FBI did not search for documents about Harrington and did not
process the Harrington Request. Villar did not appeal the
FBI's response to the Harrington Request.
response to the Villar Request, the FBI conducted a search of
its records and identified 615 pages of documents that were
responsive. In September 2012, the FBI released 388
pages of documents to Villar, 126 of which contained
redactions. The FBI withheld the remaining 227 documents in
their entirety. In support of its decision to not disclose
all of the requested information, the FBI cited several
exemptions to FOIA.
appealed the FBI's response to the Villar Request to the
Department of Justice's Office of Information Policy. The
Office of Information Policy denied his appeal in June 2015.
then brought this suit, proceeding pro se,  and asserting
claims against the FBI, David Hardy, the Section Chief for
the FBI's Records Management Division, and Brian Keefe,
an FBI Special Agent. The court previously dismissed
Villar's claims against Hardy and Keefe. Doc. no. 40. As
a result, the only claim remaining in this action is
Villar's FOIA claim against the FBI.
moves for summary judgment, arguing that its withholding of
information was proper under FOIA Exemptions 6, 7(C), 7(D),
and 7(E). See U.S.C. § 552(b)(6) and (b)(7)(C), (D), and
(E). Villar objects, arguing that the FBI provided an
insufficient Vaughn index,  the FBI's asserted exemptions
do not apply here, and the FBI has waived its right to assert
also moves for summary judgment, and the FBI objects. In
support of their positions on Villar's motion, both
parties have incorporated their arguments on the FBI's
motion for summary judgment.
requires federal agencies to make their records available to
any person upon request. 5 U.S.C. § 552(3). FOIA was
“‘enacted to facilitate public access to
Government documents' and ‘designed to pierce the
veil of administrative secrecy and to open agency action to
the light of public scrutiny.'” Union Leader
Corp. v. U.S. Dep't of Homeland Sec., 749 F.3d 45,
49-50 (1st Cir. 2014) (quoting U.S. Dep't of State v.
Ray, 502 U.S. 164, 173 (1991)). “FOIA's
‘basic policy of full agency disclosure' furthers
the statute's essential purpose of permitting citizens to
know ‘what their government is up to.'”
Id. at 50 (quoting U.S. Dep't of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749,
773 (1989) (internal quotation marks omitted)).
statute's “right of access is not absolute,
however, as FOIA exempts certain categories of materials from
disclosure in order to effectuate the goals of the FOIA while
safeguarding the efficient administration of the
government.” Id. (internal quotation marks
omitted); see also 5 U.S.C. § 552(b) (providing
exemptions). “To fulfill the broad purposes of FOIA,
[courts] construe these exemptions narrowly.”
Stalcup v. C.I.A., 768 F.3d 65, 69 (1st Cir. 2014).
Further, agencies cannot withhold a document in its entirety
merely because it contains some exempt material. Airaj v.
United States Dep't of State, 15-cv-983(ESH), 2016
U.S. Dist. LEXIS 55750, at *30 (D.D.C. Apr. 27, 2016).
Rather, “FOIA . . . mandates that ‘any reasonably
segregable portion of a record shall be provided to any
person requesting such records after deletion of the portions
which are exempt under section 552(b).'”
Carpenter v. U.S. Dep't of Justice, 470 F.3d
434, 442 (1st Cir. 2006) (quoting 5 U.S.C. § 552(b)).
government bears the burden of demonstrating that material is
exempt from disclosure. New Hampshire Right to Life, 778 F.3d
at 48. When assessing whether an exemption applies, courts
must “employ a de novo review [and] find an adequate
factual basis to support the agency's assertion of the
exemption.” Town of Winthrop v. F.A.A., 328 F.
App'x 1, 5 (1st Cir. 2009) (citing Maynard v.
C.I.A.,986 F.2d 547, 567 n.11 (1st Cir. 1993)).
Moreover, courts must make a ...