Kowal v. DOJ, No. 22-5231, 22-5287, 2024 WL 3418844 (D.C. Cir. July 16, 2024) (Rao, J.)

Kowal v. DOJ, No. 22-5231, 22-5287, 2024 WL 3418844 (D.C. Cir. July 16, 2024) (Rao, J.)

Re:  Request for records concerning capital defendant

Disposition:  Affirming district court’s grant of government’s motion for summary judgment

• Litigation Considerations, Adequacy of Search; Procedural Requirements, Searching for Responsive Records:  The Court of Appeals for the District of Columbia Circuit holds that “the FBI, ATF, and DEA followed [the requester’s] specific requests to locate records relevant to [the requester’s client’s] criminal case and demonstrated that their search methods were reasonable.”  The court relates that “[the requester] first argues she presented evidence the FBI, ATF, and DEA overlooked responsive records.”  “[The requester] possesses over 200 multimedia items from [the] trial [at issue], some of which, for instance, explicitly mention the DEA in the file name.”  “The agencies did not disclose these records in response to her FOIA request.”  “[The requester] maintains these omissions are sufficient evidence to preclude summary judgment because she has raised a factual dispute about the adequacy of the agencies’ searches.”  “[The court] disagree[s].”  “At best, [the requester] has established the agencies may have missed some records in their searches.”  “But a ‘reasonable and thorough search’ may still miss records.”  “[The court] focus[es] on the process, not the results, when determining the adequacy of a FOIA search.”  “[The court] hold[s] the agencies’ searches were reasonable in light of [the requester’s] particular requests.”  “The framing of [the requester’s] requests directed the agencies toward their criminal investigation databases.”  “[The requester’s client, and the subject of the request,] was a criminal defendant, and [the requester] sought materials about [the client’s] criminal investigation.”  “The FBI, ATF, and DEA each searched their criminal investigation databases based on [the requester’s] specific records request.”  “They were not required to do more.”  “Moreover, [the requester] contends the agencies’ searches were inadequate because they failed to uncover additional trial records in her possession that she surmises the agencies should have produced.”  “But given that entities not subject to these FOIA requests – including local law enforcement and the U.S. Attorney’s office in Florida – were involved in investigating and trying [the requester’s client], [the requester] has not supported her inference.”  “If [the requester] believes the agencies failed to turn over specific records from [the requester’s client’s] trial and wants the agencies to pursue records related to her trial exhibits, she can submit a second, more specific FOIA request.”  “But she fails to demonstrate the agencies’ searches were inadequate.”
  
  “Second, [the requester] challenges the scope of the agencies’ searches, asserting that the agencies narrowly construed her requests, failed to use all relevant keywords, and failed to search all appropriate databases.”  “As explained [above], the FBI and ATF properly explained that they searched all relevant databases for investigation files related to the criminal matter [the requester] referenced in her FOIA request.”  “Agencies have the discretion to construe requests reasonably and conduct flexible and targeted searches within their internal records systems.”  Additionally, “[the requester] maintains the FBI, ATF, and DEA did not conduct adequate searches because they failed to search for records mentioning [the requester’s client’s] alias or to search using phonetic variations of [the requester’s client’s] name.”  “Given the parameters of [the requester’s] request and because the agencies located [the requester’s client’s] criminal investigation files, it was reasonable for them not to search using [the requester’s client’s] alias.”  “[The requester] only requested records ‘pertaining to any investigation, arrest, indictment, conviction, sentencing, incarceration, and/or parole of [the requester’s client].’”  “Once the agencies found their criminal investigative files pertaining to [the requester’s client’s] capital case, it was reasonable not to search further.”  “[The requester] merely speculates the agencies possess additional records in which [the requester’s client] was identified only by his street name.”  “But that is insufficient to demonstrate the agencies’ searches were unreasonable or performed in bad faith.”
   
• Exemption 3; Waiver & Discretionary Disclosure, Waiver:  The Court of Appeals for the District of Columbia Circuit holds that “[t]he FBI invoked this exemption to withhold a narrative summary of a wiretap conversation, as required by the Wiretap Act, 18 U.S.C. §§ 2510–12.”  “[The requester] does not dispute the record is subject to Exemption 3’s protections.”  “She claims instead that the record should be released under the public domain doctrine because it summarizes wiretaps introduced at [the requester’s client’s] trial.”  “[The requester] alleges only that the wiretapped conversations were made public at [the requester’s client’s] trial, not that the FBI’s narrative summary of those conversations was made public.”  “An agency’s summary is not the same as the conversation itself.”  “[The requester] has not shown ‘there is a permanent public record of the exact’ record she seeks.”  “The public domain doctrine does not defeat the FBI’s withholding under Exemption 3.”
   
• Exemption 6; Exemption 7(C); Waiver & Discretionary Disclosure, Waiver:  “[The Court of Appeals for the District of Columbia Circuit] hold[s] that the FBI, ATF, and DEA properly justified their withholding of records under Exemption 7(C).”  The court relates that “[t]he FBI, ATF, and DEA invoked FOIA Exemptions 6 and 7(C) to withhold the names and other identifying information, including addresses and phone numbers, of witnesses and law enforcement personnel involved in [the requester’s client’s] investigation.”  “[The requester] argues that the agencies failed to justify their withholdings.”  “[The court] disagree[s].”  “The FBI, ATF, and DEA explained that they redacted names and other personal information, such as telephone numbers, addresses, and confidential source numbers, to prevent ‘possible harassment’ or ‘derogatory inferences and suspicion’ against the personnel and witnesses for their involvement in a gang murder investigation.”  “These explanations are sufficient to demonstrate that the disclosure of the withheld information would threaten privacy interests.”  “Moreover, [the requester] fails to establish any cognizable public interest in disclosure.”  “There is no public interest in disclosure ‘unless there is compelling evidence that the agency denying the FOIA request is engaged in illegal activity, and access to the [requested information] . . . is necessary in order to confirm or refute that evidence.’”  “[The requester] provides no evidence of agency misconduct.”  “Instead, she merely speculates that the government may have exculpatory evidence in [the requester’s client’s] capital case and that this implicates the public interest.”  “[The court’s] caselaw is clear that ‘the requester must establish more than a bare suspicion in order to obtain disclosure.’”  “Where there is no identifiable public interest, the privacy interest protected by Exemption 7(C) prevails because ‘something, even a modest privacy interest, outweighs nothing every time.’”
  
  “[The requester] also argues the public domain doctrine should overcome the agencies’ reliance on Exemption 7(C) for some withheld trial records and witness names.”  “Although she provided the district court with a list of testifying witnesses and transcripts of their testimony, these trial records demonstrate only that those specific witnesses testified at trial.”  “The records do not link witnesses to particular documents or to the information provided by that source.”  “Because the specific information [the requester] seeks has not been publicly disclosed, she cannot benefit from the public domain doctrine.”
  
  “[The requester] also specifically challenges the FBI’s withholding of a testifying witness’s plea agreement because the agreement was admitted into evidence at trial and discussed in open court.”  “Trial records are generally considered public; however, to satisfy the public domain doctrine, they must be ‘preserved in a permanent public record.’”  “Records are no longer public when ‘destroyed, placed under seal, or otherwise removed from the public domain.’”  “And [this] circuit has cast doubt on the proposition that ‘practically obscure’ material remains public.”  “Here, the FBI has provided evidence that [the requester’s client’s] trial records, including the specified plea agreement, were not filed with the court and preserved.”  “Because these records are not accessible on the public or electronic docket, the plea agreement does not fit within the public domain doctrine.”
   
• Exemption 7(D):  The Court of Appeals for the District of Columbia Circuit holds that “[t]he FBI and DEA demonstrated the sources here were confidential and reasonably justified withholding the information they provided in [the requester’s client’s] investigation.”  “The circumstances here easily support an inference of confidentiality for each source in [the requester’s client’s] murder investigation.”  “The FBI plausibly asserted it was ‘especially important’ to withhold information about sources in this context ‘given the subject matter . . . involves [the] murder of a family on a roadside, [and [the requester’s client]] was convicted for such murder.’”  “Similarly, the DEA explained the sources provided information about an extensive drug trafficking operation and therefore faced a threat of violent reprisal.”  “[The court has] recognized implied assurances of confidentiality in similar circumstances.”  “The grisly nature of [the requester’s client’s] crime, committed to further a drug trafficking operation, permits a fair inference of confidentiality for the sources in [the requester’s client’s] investigation.” 
  
  “[The requester] also maintains that any source who expected to testify at trial cannot be considered confidential and is not protected by Exemption 7(D).”  “But [this] circuit has long rejected this argument.”  “‘It would defeat the purpose of FOIA [E]xemption 7(D) to hold that the possibility of trial testimony to some or all of the substance of an FBI interview establishes that the source had no expectation that his identity would remain undisclosed.’”
   
• Exemption 7(E):  The Court of Appeals for the District of Columbia Circuit holds that “[t]he FBI and DEA met their burden to explain how disclosure of the information could reasonably be expected to risk circumvention of the law under Exemption 7(E).”  The court relates that “[t]he FBI and DEA invoked Exemption 7(E) to withhold records detailing investigative techniques, including technical information about computer databases and internal systems.”  The court finds that “[t]he] low bar is easily cleared here.”  “The agencies provided well-supported affidavits explaining how the information withheld could aid criminal elements.”  “For example, the DEA’s declarant explained the withheld information could provide drug traffickers information on how the agency prioritized its investigations, permitting would-be criminals to change their behaviors to avoid detection.”  “Similarly, the FBI’s affidavit explained that providing information on internal databases and file paths could aid in the commission of cyberattacks against the agency.”  “The agencies logically connected withholding with preventing circumvention of the law.”  “[The requester] also claims this withheld information is publicly available, but her evidence fails to support this contention.”