United States District Court, D. New Hampshire
McCafferty United States District Judge.
Villar, a prisoner, brings this suit under 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.
Following the court's order denying the parties'
motions for summary judgment without prejudice, the FBI and
Villar have filed second cross motions for summary judgment.
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).
April 2006, Richard Villar was indicted on charges of bank
robbery and conspiring with two others to commit bank robbery
under 18 U.S.C. §§ 371 and 2113(a). The two
coconspirators pled guilty to the charges against them.
Villar's case proceeded to trial, where a jury convicted
him of bank robbery and conspiracy to commit bank robbery.
Villar was sentenced to a 60-month sentence for one count and
a concurrent 188-month sentence for the other count.
2010, 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
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 stored under his
name, the FBI opened two separate requests. The first request
covered the records related to Villar. The second request
covered the FBI's records relating specifically to
to its policy for third-party requests, the FBI refused to
search for any records about Harrington unless Villar
provided authorization from Harrington, proof of
Harrington's death, or a "clear demonstration that
the public interest in disclosure outweighs the personal
privacy interest and that significant public benefit would
result from the disclosure of the requested records."
Doc. no. 43-4 at 1.
response to the request concerning information about Villar,
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 pages of
documents in their entirety. See doc. no. 43-2 at
¶ 86. In support of its decision to not disclose all of
the requested information, the FBI cited several exemptions
appealed the FBI's response to his request for records
stored under his name 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,  asserting a FOIA
claim against the FBI challenging the response to his FOIA
request. In addition, Villar brought claims against 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.
that order, the parties filed cross motions for summary
judgment on Villar's remaining FOIA claims. See
doc. nos. 43 & 47. In its order on those motions, the
court granted the FBI's motion for summary judgment on
any claims arising out of Villar's request to search for
records about Harrington because Villar had failed to exhaust
his administrative remedies for that request. Doc. no. 53 at
the request for records in Villar's file, the court
denied both the FBI's and Villar's motions for
summary judgment. With respect to the FBI's motion, the
court concluded that the government's Vaughn
index did not provide a sufficient factual basis to assess
whether the withheld material was exempt from disclosure.
With respect to Villar's motion, the court concluded that
there were disputed issues of fact that precluded summary
judgment. In addition, the court rejected Villar's
argument that the FBI waived its right to assert certain FOIA
exemptions by failing to raise those exemptions in its
administrative response to him. The court's denial of the
parties' motions for summary judgment, however, was
without prejudice to them filing second motions for summary
and Villar move again for summary judgment on the remaining
portion of Villar's FOIA claim concerning the records
about him. In preparing its second motion for summary
judgment, the FBI reconsidered its original withholdings,
and, as a result, released in full twelve pages of documents
that it originally withheld. See doc. no. 55-4.
Accordingly, the FBI's motion now asserts that it
properly withheld 215 pages in full and properly redacted
material from another 126 pages. The FBI contends that its
withholdings and redactions are justified under FOIA
Exemptions 6, 7(C), 7(D), and 7(E). See 5 U.S.C.
§ 552(b) (6) and (b)(7)(C), (D), and (E) .
support, the FBI incorporates its original motion for summary
judgment, which argued that the withheld material was exempt
from disclosure under FOIA. See doc. no. 43. The FBI
also filed a second Vaughn index providing additional factual
support for its claimed exemptions. In response, Villar
argues that the FBI's revised Vaughn index is inadequate
and that the FBI has improperly withheld in full numerous
documents. Finally, Villar argues that the court should view
the withheld documents in camera.
support of his motion for summary judgment, Villar
incorporates his objection to the FBI's first motion for
summary judgment, see doc. no. 45, which argued that
the FBI's claimed exemptions did not apply. In response, the
FBI again incorporates its original motion for summary
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 (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).
"FOIA further 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 agency bears the burden of proving the
applicability of a specific statutory exemption."
Union Leader Corp., 749 F.3d at 50. "That
burden remains with the agency when it seeks to justify the
redaction of identifying information in a particular document
as well as when it seeks to withhold an entire
document." Id. (quoting Ray, 502 U.S.
at 173). To meet that burden, "courts often require the
withholding agency to provide a 'Vaughn' index,"
which sets forth the factual basis for the claimed
exemptions. Carpenter, 470 F.3d at 442. In addition,
"[t]he district court must determine de novo
whether the agency has met its burden." Union
Leader, 749 F.3d at 50.
a Vaughn index "includes a general description
of each document sought by the FOIA requester and explains
the agency's justification for nondisclosure of each
individual document or portion of a document."
Church of Scientology Int'l v. U.S.
Dep't of Justice, 30 F.3d 224, 228 (1st Cir. 1994).
The index serves the following three purposes:
[I]t forces the government to analyze carefully any material
withheld, it enables the trial court to fulfill its duty of
ruling on the applicability of the exemption, and it enables
the adversary system to operate by giving the requester as
much information as possible, on the basis of which he can
present his case to the trial court.
Id. at 228 (quoting Maynard v. C.I.A., 986
F.2d 547, 557 (1st Cir. 1993)) .
assessing a Vaughn index, "[i]t is the
function, not the form, which is important, and the question
is whether the particular taxonomy employed afford[s] the
FOIA requester a meaningful opportunity to contest, and the
district court an adequate foundation to review, the
soundness of the withholding." Id. To satisfy
this test, the index "must supply a relatively detailed
justification, specifically identifying the reasons why a
particular exemption is relevant and correlating those claims
with the particular part of a withheld document to which
they apply." Id. (internal quotation marks
omitted). This justification must also include a factual
basis supporting the agency's segregability conclusion.
Id. at 230-31. In practical terms, this means that
when an agency withholds a document in full or several pages
of a document in full, it must explain why the withheld
material does not contain any other segregable and
disclosable material. Id. at 230-33.
support of its first motion for summary judgment, the FBI
submitted a coded Vaughn index. See doc.
no. 43-2 6. That filing relied on a series of justification
codes. As explained in the second declaration of David M.
Hardy, doc. no. 43-2, each code referred to a specific
category of material that, the FBI contended, was exempt from
disclosure under specific statutory exemptions, id.
at ¶ 54. For pages that the FBI disclosed in redacted
form, the agency stamped a justification code on the face of
the document next to the corresponding redaction to explain
the basis for withholding the material. For pages withheld in
full, the FBI provided a table that identified the page
number withheld and referenced an exemption code to justify
that withholding. The FBI did not provide descriptions of the
documents or specific descriptions of the material it
withheld. Rather, the second Hardy declaration generally
described the category of material that the FBI argued was
exempt under each code.
order on the parties' first motions for summary judgment,
the court acknowledged that the First Circuit has approved of
the use of coded indices in certain circumstances. Doc. no.
53 at 13-15 (citing Maynard, 986 F.2d at 559 & 559 n.13).
Nevertheless, the court concluded that the FBI's index
was insufficient for two principal reasons. Id. at
15-16. First, the index did not describe the contents of the
documents for which it was claiming an exemption to
FOIA's disclosure requirement. Id. For the pages
that the FBI had withheld in full, the lack of description of
those pages' contents made it functionally impossible for
Villar or the court to evaluate the applicability of the
claimed exemptions. Second, the FBI failed to demonstrate
that it had conducted an appropriate segregability analysis
and instead relied on conclusory assertions about
segregability in the second Hardy declaration. Id.
support of its renewed motion for summary judgment, the FBI
has submitted a new Vaughn index. See doc.
no. 55-3. The FBI contends that this index explains its
withholdings in more detail and cures the problems that the
court identified in its previous order. In response, Villar
argues that the new index fails because, like the FBI's
last submission, this one does not "attempt to
particularize each exemption to the actual document
withheld" and relies exclusively on "the
generalized description[s] contained in the Hardy
Declaration." Doc. no. 56-1 at 1-2.
court agrees with the FBI that its new index is sufficient.
Unlike its first index, the new index identifies and
describes each document that the FBI has withheld in full or
in part. This provides meaningful context that allows Villar
and the court to evaluate the applicability of the FBI's
claimed exemptions. In addition, the index describes the
specific content in each document that the FBI has withheld
and provides a justification for why that material is
exempt. Although, as Villar notes, these
justifications often match the same generalized
justifications that the FBI relied on in its original motion
for summary judgment, they are now linked to a description of
the specific withheld material. The FBI, therefore, has
particularized these justifications to the withheld material.
Finally, the FBI's new index also explains why it
concluded that the withheld material contained no segregable,
of these features, the new index provides a sufficient
factual basis to allow both Villar and the court to evaluate
the applicability of the claimed exemptions and whether the
FBI conducted a proper segregation analysis.
contends that its withholdings are justified under FOIA
exemptions b(6), b(7)(C), b(7)(D), and b(7)(E). See
5 U.S.C. § 552(b) (setting forth exemptions to
FOIA's disclosure requirement). In response, Villar
argues that the exemptions are not applicable.
Exemptions 6 and 7(C)
to Exemptions 6 and 7(C), the FBI has withheld responsive
material that contains the names or other identifying
information of third parties. Specifically, this material
includes the names and identifying information of government
and law enforcement personnel and other third parties with a
connection to Villar's criminal investigation. For each
record that the FBI claims is exempt from disclosure under
Exemption 6, it also asserts Exemption 7(C) as a separate
basis for its withholding.
Exemption 6 exempts from FOIA's disclosure requirement
"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). Exemption 7(C) exempts from FOIA's disclosure
requirement "records or information compiled for law
enforcement purposes ... to the extent that the production of
such  records or information . . . could reasonably be
expected to constitute an unwarranted invasion of personal
privacy." 5 U.S.C. § 552(b)(7)(c).
statutory language in Exemption 6, which requires that the
disclosure actually constitute "a clearly
unwarranted" invasion of personal privacy, "is less
protective of personal privacy than Exemption 7(C) . . .
." Union Leader, 749 F.3d at 50 n.4.
Accordingly, when an agency asserts both exemptions to
justify withholding material that has been compiled for law
enforcement purposes, "[the court] need not address
Exemption 6 separately because all information that would
fall within scope of Exemption 6 would also be immune from
disclosure under Exemption 7(C).'" Moffat v.
U.S. Dep't of Justice, 716 F.3d 244, 250 n.4 (1st
Cir. 2013) (internal quotation marks omitted); Union
Leader, 749 F.3d at 50 n.4. Because there is no dispute
that the records at issue here were compiled for law
enforcement purposes, the court will assess only the
applicability of Exemption 7(C).
determine whether the government may rely on Exemption 7(C)
to withhold documents, [the court] balance[s] the privacy
interest at stake in revealing the materials with the public
interest in their release." Eil v. U.S. Drug
Enf't Admin., 878 F.3d 392, 398 (1st Cir. 2017)
(internal quotation marks omitted). The Supreme Court has
observed "that an individual's privacy interest
isxat its apex' when he or she is involved in
a law enforcement investigation." Stalcup, 768
F.3d at 73 (quoting Nat'1 Archives & Records
Admin, v. Favish, 541 U.S. 157, 166 (2004)). Once the
government demonstrates that a legitimate privacy interest
recognized under Exemption 7(C) is present, "the party
seeking disclosure must show (1) that there is a
significant' public interest in disclosure, and (2) that
the requested information is likely to advance that
interest.'" Eil, 878 F.3d at 398 (quoting
Favish, 541 U.S. at 172).