Marck v. HHS, No. 15-10, 2018 WL 2694450 (D.D.C. June 5, 2018) (Collyer, J.)

Marck v. HHS, No. 15-10, 2018 WL 2694450 (D.D.C. June 5, 2018) (Collyer, J.)

Re:  Request for records pertaining to third-party individuals and entities

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for in camera review

• Exemption 3:  "FBI explained that the withheld information includes the identity of a subpoenaed witness, as well as the information provided by that witness, which would enable others to identify him or her and disclose the substance of the testimony that individual gave or intended to give the grand jury."  "Therefore, the withholding . . . and the redactions made under Exemption 3, constitute grand jury information that must be excluded from FOIA release."  The court holds that, "[t]he fact that [plaintiff] believes he already knows the name of the third-party individual whose identity is being protected does not remove the mandatory protections provided to grand jury information."
   
• Exemptions 6 & 7C:  "Courts routinely permit law enforcement agencies to redact the names and identifying information of their agents."  "Plaintiff argues that the privacy interests at issue are outweighed by the 'public interest in uncovering Government misconduct . . .'"  "Plaintiff speculates that, through a suspicious deal . . . government misconduct occurred in [an] investigation and prosecution . . . but provides no evidence that 'warrant[s] a belief by a reasonable person' that any misconduct occurred."  "Because '[u]nsubstantiated assertions of government wrongdoing . . . do not establish a meaningful evidentiary showing' sufficient to overcome the privacy interests protected by Exemption 7(C)."  "[Plaintiff] has not raised a sufficient challenge to the privacy interests at issue here and FBI's withholdings and redactions under Exemptions 6 and 7(C) are justified."
   
  "FBI also redacted information to protect the names and/or identities of third parties who 'came into contact with the subjects of the investigations,' including third parties merely mentioned, third parties who provided information to the FBI, and commercial institution personnel."  "Third parties involved in law enforcement investigations have a strong privacy interest."  "[Plaintiff] fails to provide more than a speculative public interest and, therefore, cannot overcome the privacy interest of the third parties[.]"
   
• Exemption 7D:  "FBI redacted the 'name, identifying information about, and information provided by a third party' who 'provided accurate and reliable information concerning the activities of subjects who were of investigative interest to the FBI or other law enforcement agencies.'"  "[Plaintiff] argues that Exemption 7(D) only applies if FBI demonstrates that the source was provided an express grant of confidentiality, or provides 'evidence supporting a determination that the particular source spoke with an understanding that the communication would remain confidential.'"  "[Plaintiff] correctly argues that an agency must do more than simply state that a source provided information on a confidential basis . . . [h]owever, implied or inferred assurances of confidentiality are also recognized by the D.C. Circuit."  "If an agency does not 'present probative evidence that the source did in fact receive an express grant of confidentiality,' then it must 'point to more narrowly defined circumstances that support the inference of confidentiality.'"  "[Defendant]'s declaration specifically describes the close relationship between the source and the target, explaining that the source was 'in a position to have ready access to and/or knowledge about targets and others involved in fraudulent activities.'"  "Finally, the source was subpoenaed to testify before the grand jury, which supports a finding of implied confidentiality to the pre-subpoena information he gave to FBI."  "The court, therefore, finds that the information was properly withheld under Exemption 7(D)."
   
• Procedural Requirements, "Reasonably Segregable" Obligation:  The court holds that, "[w]hile [plaintiff] may desire fewer redactions . . . FBI has adequately explained that all segregable information has been provided and only exempt information was redacted."
   
• Litigation Considerations, In Camera Inspection:  "[Plaintiff] asks the court to review in camera the six pages . . . and [determine] if there is non-exempt information that should be released."  The court found that, "[b]ecause this case is not one where the agency's declarations are 'insufficiently detailed to permit meaningful review of exemption claims,' in camera review is unnecessary."