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Villar v. Federal Bureau of Investigation

United States District Court, D. New Hampshire

August 21, 2017

Richard Villar
Federal Bureau of Investigation Opinion No. 2017 DNH 157


          Landya McCafferty United States District Judge.

         Richard 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 summary judgment.

         Standard of Review

         A 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).


         In 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.

         Because 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 “Harrington Request”).

         In response to the Harrington Request, and pursuant to its policy for requests about third parties, the FBI issued a conditional “Glomar response.”[1] 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.

         In response to the Villar Request, the FBI conducted a search of its records and identified 615 pages[2] of documents that were responsive.[3] 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.

         Villar 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.

         Villar then brought this suit, proceeding pro se, [4] 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.


         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, [5] the FBI's asserted exemptions do not apply here, and the FBI has waived its right to assert other exemptions.

         Villar 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.

         I. FOIA

         FOIA 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)).

         The 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)).

         The 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 ...

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