Guarascio v. FBI, No. 18-2791, 2024 WL 2208194 (D.D.C. May 16, 2024) (Cooper, J.)

Guarascio v. FBI, No. 18-2791, 2024 WL 2208194 (D.D.C. May 16, 2024) (Cooper, J.)

Re:  Request for records concerning plaintiff’s conviction for manufacturing child pornography

Disposition:  Granting defendant’s motion for summary judgment

• Litigation Considerations:  The court holds that “while the FBI’s submission is styled as a supplemental response, it is effectively a renewed motion for summary judgment.”  “As such, and as the Court cautioned, [plaintiff] was required to respond or risk conceding all of the arguments therein.”  “Hearing no response from [plaintiff] despite the Court’s order warning him of the consequences of staying mum, the Court will now treat the issues on which it previously reserved judgment as conceded.”  “Yet, for the sake of completeness, the Court will delve into [defendant’s] declaration and explain why the Bureau is entitled to summary judgment regardless.”

• Litigation Considerations, Adequacy of Search:  “The Court .  . finds the Bureau satisfied its FOIA duty of performing a reasonable search.”  “Regarding the adequacy of the search, the Court withheld judgment the last go around because the Bureau had not provided ‘the requisite averment that all locations likely to contain responsive records were searched.’”  The court relates that “[defendant’s] supplemental declaration explain[s] that the FBI searched for records within its Central Records System’s (“CRS’s”) Automated Case Support and Sentinel indices – which ‘provide access to a comprehensive, agency-wide set of indexed data on a wide variety of investigative and administrative subjects’ – using [plaintiff’s] first and last name as the search term.”  “This search located [plaintiff’s] ‘main’ file as well as responsive ‘reference’ files.”  “‘Additionally,’ [defendant] attests, ‘there was no indication from the FBI’s CRS search efforts that responsive records would reside in any other FBI system or location.’”  “His declaration then concludes with what was left unsaid the last time:  The FBI has ‘searched all locations and files reasonably likely to contain responsive records, and there is no basis for the FBI to conclude that a search elsewhere would reasonably be expected to locate responsive records subject to the FOIA.’”  “That official declaration, which is ‘accorded a presumption of good faith,’ is enough to carry the FBI’s burden.”

• Exemption 7(D):  “[T]he Court finds that all Exemption 7(D) withholdings are justified, and that the FBI adequately segregated and released all nonconfidential materials.”  “On the withholdings under Exemption 7(D), the Court reserved judgment the last outing because it could not discern whether all the withheld records that the Bureau had received from the North Carolina State Bureau of Investigation (“NCSBI”) were truly confidential because, in the FBI’s own telling, only some pages bore the marking:  ‘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.’”  “It was therefore uncertain whether all of the withheld files were provided under a condition of confidentiality, as Exemption 7(D) requires.”  “[Defendant’s] supplemental declaration resolves those lingering doubts.”  “As [defendant] explains, following the prior opinion, the FBI re-reviewed these withholdings and ‘determined that there were clear indicators that the NCSBI requested that its entire file pertaining to its investigation of Plaintiff be kept confidential.’”  “Specifically, it found that the cover sheet of the NCSBI case file was stamped with the confidential warning quoted above and that, ‘[t]hroughout the NCSBI’s file, the FBI located the same confidentiality marking mentioned above on the first page of each of the NCSBI’s reports.’”  “Even though this confidentiality marking did not appear on every ensuing page, then, it was still ‘clear to the FBI from the text of the reports that all the pages following the confidentiality statement within a report, as well as the documents attached to and directly following a report[,] were grouped together under the same request for confidentiality.’”  “The information contained in the reports further supported this conclusion, as it revealed ‘the NCSBI’s law enforcement techniques and procedures.’”
   
• Litigation Considerations, Adequacy of Search:  The court finds that defendant “‘conducted a page-by-page segregability analysis of the NCSBI’s file and determined that some information’ – including the ‘search warrants, evidence listings, seized property lists, probable cause affidavits, and arrest warrants’ – ‘could be segregated for release.’”