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Villar v. Federal Bureau of Investigation

United States District Court, D. New Hampshire

July 23, 2018

Richard Villar
Federal Bureau of Investigation


          Landya McCafferty United States District Judge.

         Richard 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.


         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).


         I. Factual Background

         In 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.

         In May 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.

         Because 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 Harrington.

         Pursuant 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.

         In response to the request concerning information about Villar, the FBI conducted a search of its records and identified 615 pages[1] of documents that were responsive.[2] 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 to FOIA.

         Villar 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.

         II. Procedural Background

         Villar then brought this suit, proceeding pro se, [3] 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.

         Following 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 10.

         As to 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 judgment.


         The FBI and Villar move again for summary judgment on the remaining portion of Villar's FOIA claim concerning the records about him.[4] 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) .

         In 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.

         In 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.[5] In response, the FBI again incorporates its original motion for summary judgment.

         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 (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). "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)).

         "[T]he 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.

         I. Vaughn Index

         Ordinarily, 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)) .

         When 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.

         In 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.

         In its 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. at 16.

         In 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.

         The 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.[6] 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, disclosable information.

         Because 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.

         II. FOIA Exemptions

         The FBI 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.

         A. Exemptions 6 and 7(C)

         Pursuant 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.

         FOIA 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).

         The 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).

         "To 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).

         1. Priv ...

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