Guarascio v. FBI, No. 18-2791, 2023 WL 7182057 (D.D.C. Nov. 1, 2023) (Cooper, J.)

Guarascio v. FBI, No. 18-2791, 2023 WL 7182057 (D.D.C. Nov. 1, 2023) (Cooper, J.)

Re:  Request for records concerning plaintiff’s conviction

Disposition:  Granting defendant’s motion for summary judgment in part

• Procedural Requirements, FOIA Requesters & Litigation Considerations, Mootness and Other Grounds for Dismissal:  “[T]he Court first concludes that the FBI has not shown that [plaintiff] lacks standing to challenge his FOIA/Privacy Act waiver because the Bureau’s release of the requested records mooted his claim.”  “Although the FBI initially invoked this waiver when refusing to process [plaintiff’s] requests, the Bureau contends that it is no longer denying access to any requested records on this basis and therefore [plaintiff] lacks an informational injury needed to challenge the waiver’s enforceability.”  “The FBI is correct in its premise, but mistaken in its conclusion.”  “Contrary to [plaintiff’s] suppositions, the FBI is not relying on the plea agreement in any manner here.”  “But that does not necessarily mean that he lacks standing to pursue a declaratory judgment regarding the enforceability of his waiver.”  “Rather, it is the FBI’s burden to demonstrate that its voluntary cessation of the challenged action has mooted [plaintiff’s] claim.”  “The FBI does not even discuss mootness in its briefs, however, let alone satisfy its heavy burden on this issue.”  Additionally, “there is significant reason to question whether there is ‘no reasonable expectation that the alleged violation will recur.’”  “After all, the FBI initially produced the records due to a self-described ‘administrative oversight,’ released additional documents only as a ‘courtesy’ even after the D.C. Circuit called these types of waivers into question in [Price v. DOJ, 865 F.3d 676 (D.C. Cir. 2017)], and failed to disclaim any future reliance on the waiver during this litigation even though it has had ample opportunity to do so.”  “In this context, the Court cannot find that there is no reasonable expectation of recurrence without further briefing on the matter.”  “Accordingly, the Court cannot grant summary judgment on this issue at this time.”

• Litigation Considerations, Adequacy of Search:  “The Court . . . finds that the FBI failed to carry its burden as to the adequacy of its search because it did not aver that it searched all files that are likely to contain responsive materials.”  Responding to plaintiff’s arguments concerning documents that he claims are missing, the court finds that “‘[the] adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.’”  “Regarding the methods used here, [plaintiff] suggests that the FBI searched only ‘main’ files in response to his FOIA request – that is, the files created for a particular individual who is subject to or the focus of an investigation – as opposed to ‘reference’ files created for all those associated with an investigation.”  “But this assertion is flatly contradicted by [defendant’s] declaration that, after searching [plaintiff’s] main file, the Bureau ‘conducted an additional search of the CRS to locate any “reference” material potentially responsive to Plaintiff’s Request.’”  “Once again, this declaration is entitled to a presumption of good faith.”  However, the court finds that defendant “did not ‘aver[ ] that all files likely to contain responsive materials . . . were searched.’”  “[Defendant’s] declaration details the FBI’s ‘search terms and the type of search performed,’ . . . and provides some general assurances about the sufficiency of the scope.”  “Further, [defendant] stated that the requested information ‘would reasonably be expected to be located in the CRS via the index search methodology’ because [plaintiff’s] attorney previously requested and received the same type of information Guarascio requests now.”  However, “[defendant] stopped short of attesting that CRS likely contains all responsive records or that the queries run within that system were exhaustive.”  “The Court cannot overlook this oversight . . . .”  “To be clear, the Court does not hold that the FBI is required to search additional records systems to adequately respond to [plaintiff’s] requests.”  “The Court finds only that the FBI is not entitled to summary judgment where its affiant fails to aver that it searched all locations likely to contain responsive records.”  “Should the FBI cure this deficiency with a new affidavit, the burden will shift to [plaintiff] to rebut that affidavit with countervailing evidence – i.e., more than ‘mere speculation’ as to yet uncovered documents.”

• Fees and Fee Waivers, Fee Waivers:  “[T]he Court concludes that Guarascio failed to satisfy his burden when requesting a fee waiver for production of the digital records.”  “The FBI therefore did not act unlawfully when refusing to release these materials gratis.”  “Reading his filings liberally, [plaintiff] appears to maintain he is entitled to a fee waiver because he is indigent and because the requested digital records are relevant to his allegations of ineffective assistance of counsel, prosecutorial misconduct, and other vague improprieties in his underlying criminal case.”  “In making these assertions, however, [plaintiff] did not demonstrate that he satisfied all requirements for a fee waiver.”  “In particular, his request for a fee waiver is doubly doomed because he failed to show that disclosure of these digital records would advance the public interest or describe how he plans to disseminate the information.”  “Most critically, from his statements before the Court and to the agency, it is doubtful that the requested records would serve any public interest.”  “These digital records are aimed at proving [plaintiff’s] innocence, and courts regularly reject fee-waiver requests from inmates seeking records about their criminal cases and contending that a waiver serves the public interest ‘in setting free an innocent man.’”

• Exemption 3:  The court relates that “[t]he FBI maintains that the Child Victims’ and Child Witnesses’ Rights Act, 18 U.S.C. § 3509, prohibits it from disclosing the names, images, and identifying information of [plaintiff’s] victims who were minors at the time of the investigation.”  “This should be beyond debate.”  “The ‘Child Victims’ Act unambiguously qualifies as an Exemption 3 statute,’ . . . and the withheld records fall squarely within the Act’s ambit . . . .”  “And yet, [plaintiff] feels the need to note he already knows his victims’ identities.”  “If [plaintiff] intends to suggest that his knowledge of his own predations negates these children’s privacy rights, his argument is as astonishing as it is legally irrelevant.”  “And to the extent that [plaintiff] maintains that Exemption 3 cannot justify wholesale withholdings of full documents, . . . he misunderstands the nature of the FBI’s redactions here.”  “The FBI withheld full documents under Exemption 7(D), not Exemption 3, and the Court addresses these more sweeping withholdings later on.”  “For now, it finds the FBI is entitled to summary judgment on its limited Exemption 3 redactions.”

• Exemption 6; Exemption 7(C):  “[T]he Court concludes that the Bureau properly invoked Exemptions 6 and 7(C) to justify the limited redactions of names, contact information, and other personal identifiers from its production of documents.”  “The redacted information fits snugly within these exemptions.”  “After balancing privacy interests against the public interest in disclosure, the FBI decided to withhold the names and identifying information of third-party victims, informants, individuals mentioned in the FBI’s investigative records, and various government employees – including FBI Special Agents, Task Force Officers, and professional staff as well as local law enforcement officers and non-FBI federal personnel.”  “For each group, the court agrees that the balance tilts strongly against disclosure.”  “On the privacy side of the scale, third-party victims and informants have a strong interest in their names and contact information.”  “The same goes for the government personnel.”  “And contrary to [plaintiff’s] suggestions, . . . these privacy interests do not diminish with the passage of time since the investigation wrapped up . . . .”  “The countervailing public interests, meanwhile, are close to nil.”  “The only public interest that carries weight is ‘the citizens’ right to be informed about what their Government is up to.’”  “The closest [plaintiff] comes to showing any public interest is speculation of prosecutorial misconduct.”  “But he failed to ‘produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.’”

• Exemption 7(D):  The court relates that “[u]nder this exemption, the FBI withheld from disclosure entire documents from the North Carolina State Bureau of Investigation (‘NCSBI’) which, in the FBI’s telling, were provided under express assurances of confidentiality.”  “[Defendant] explained that, while processing the records at issue, ‘[t]he FBI located numerous investigative records provided by local law enforcement bearing markings stating the following: “CONFIDENTIAL: This is an official file of the North Carolina State Bureau of Investigation. To make public or reveal the contents to an unauthorized person is a violation of the General Statutes of North Carolina.”’”  “‘Based on the presence of these markings,’ [defendant] states that ‘the FBI determined the NCSBI provided this information under an expectation the FBI would hold the information in confidence.’”  “He goes on to detail that the FBI heavily relies on assistance from local law enforcement and that the ‘release of the information the NCSBI provided in confidence could greatly harm the FBI's effectiveness in investigating/preventing criminal acts.’”  “As a result, it appears the FBI withheld in full each document sourced from the NCSBI – apparently inferring from the presence of this stamp on some documents a universal expectation that the NCSBI intended all documents to remain confidential.”  “Here, the FBI may stretch Exemption 7(D) too far.”  The court finds that “[t]he Bureau is certainly justified in withholding documents that have been stamped with an express ‘CONFIDENTIAL’ label.”  “But in this case, [defendant’s] declaration is silent on just how many of the withheld documents bear a confidentiality stamp or whether any unstamped documents are contained within a larger confidential file, as it simply notes that the Bureau ‘located numerous investigative records’ carrying such markings.”  “The Court is thus in the dark on what percentage of the withheld documents bear this banner and whether those that are marked confidential resemble those that do not.”  “Nor does the declaration shed any light on whether the course of dealings here suggests that these particular statements of confidentiality should be universalized.”  “Without clearer visibility into this matter, the Court cannot determine that all Exemption 7(D) withholdings are justified at this time.”  “The Bureau may submit a supplemental declaration to address these concerns and bolster its case on these withholdings.”

• Exemption 7(E):  The court relates that “[t]he Bureau first applied Exemption 7(E) to a single document implicating its [Computer Analysis Response Team (“CART”)], which ‘provides digital forensics, technical capabilities, and related services and support to the FBI, intelligence organizations and other law enforcement agencies.’”  “[Defendant’s] declaration explains that CART is integral to investigations reliant on digital evidence and that ‘[p]roviding detailed information about CART software, equipment, techniques, procedures, and/or types of reports generated by CART during their forensic testing processes would impede the FBI’s effectiveness in investigating crimes where evidence can be found on computers and other digital media.’”  “The Bureau also claims that disclosing CART information might enable criminals to circumvent the law by adjusting their behavior to avoid scrutiny.”  “Courts within this District confronting comparable withholdings have held the FBI ‘properly relies on Exemption 7(E) to withhold non-public details about CART software, equipment, techniques, procedures and reports generated during its forensic examination of’ a criminal defendant's devices.”  “The Court follows this general practice and finds that the FBI’s reliance on Exemption 7(E) in withholding this CART document was appropriate.”  “The Bureau also invoked Exemption 7(E) to withhold certain information contained in FD-515 forms, which FBI personnel commonly use to report investigative accomplishments and submit at various stages of investigations to report statistically important events such as arrests, convictions, sentencings, and asset seizures.”  “Specifically, the Bureau asserted Exemption 7(E) to shield numerical ‘effectiveness ratings,’ ranging from 1 to 4, which FD-515 forms instruct FBI personnel to assign to the various investigative techniques they used.”  “Here, the FBI explains that it deleted these rating columns so that prospective criminals could not change their methods and modus operandi to circumvent detection.”  “Once again, many courts within this District rightly have upheld the redaction of ‘effectiveness ratings’ columns, . . . and this Court sees no good reason to deviate in this case.”  “[Plaintiff’s] counterarguments are unconvincing.”  “He brags that he is ‘well versed’ in law enforcement techniques, but that is irrelevant to whether publicizing this information could create a risk of circumvention of the law by others.”  “[Plaintiff] also reups his argument that the age of his criminal conviction matters here because law enforcement tactics may have changed in the interim.”  “Such conjecture is again unsupported and does not change the legal analysis.”

• Litigation Considerations, “Reasonably Segregable” Requirements:  The court finds that “The Bureau submitted a Vaughn index, and [defendant’s] declaration explains that after ‘an extensive page-by-page, line-by-line review of the documents at issue, the FBI has determined that there is no further non-exempt information that can be reasonably segregated and released without revealing exempt information.’”  “This is sufficient to satisfy the Bureau’s burden on segregability.”