Viola v. DOJ, No. 16-1411, 2025 WL 1650387 (D.D.C. June 11, 2025) (Chutkan, J.)

Viola v. DOJ, No. 16-1411, 2025 WL 1650387 (D.D.C. June 11, 2025) (Chutkan, J.)

Re: Request for records concerning former FBI informant

Disposition:  Granting defendants’ motion for summary judgment

• Litigation Considerations, Evidentiary Showing, Adequacy of Search:  The court holds that “Defendants’ search was adequate.”  “Defendants searched the Central Records System (‘CRS’), the FBI’s main document search system.”  “That system is where [the subject’s] records would most reasonably be found, because Plaintiff sought [the subject’s] interview memoranda, corresponding handwritten interview notes, and reports provided to the FBI and the U.S. Attorney’s Office by [the subject].”  “The search terms Defendants used were appropriate for the task.”  “Defendants searched for [the subject’s] name in the normal convention . . . , and used variations to change the ordered input of his name . . . .”  “Defendants focused its CRS search from 2009 to 2015 – the period during which [the subject] was an FBI informant.”  “And they exhausted two different indices for their search, as one index was succeeded by another in July 2012 due to technology reasons.”  “Plaintiff’s arguments to the contrary are unavailing.” “He first contends that Defendants’ search was inadequate because the time parameter was between 2009 and 2015, at least two years after [the subject’s] 2007 cooperation agreement.”  “He also asserts that the FBI should have searched for [the subject’s] mortgage business that he used to engage in his fraudulent conduct.”  “But Plaintiff’s FOIA request sought only ‘[a]ll FBI 302s – and the agent’s original notes – from any and all interviews with [the subject’s name] along with any reports by [the subject] that were presented to the FBI to the U.S. Attorney’s Office.’”  “Plaintiff did not specify a time period or mention [the subject’s] mortgage business.” “A ‘temporal limit pertaining to FOIA searches . . . is only valid when the limitation is consistent with the agency’s duty to take reasonable steps to ferret out requested documents.’”  “While Plaintiff did request ‘all’ such records, it is unreasonable to expect the FBI to broaden its search to include years Plaintiff did not request.”  “Nor can Defendants glean from outside ‘the four corners’ of Plaintiff’s request that he specifically sought [the subject’s] mortgage records.”
   
• Exemption 7, Threshold:  The court holds that “Defendants easily establish [the] rational connection.” “According to [Defendant’s] Declaration, the FBI ‘is the primary investigative agency’ ‘with authority and responsibility to investigate all violations of federal law not exclusively assigned to another agency[.]’”  “Investigating and documenting [the subject’s] fraud-related crimes between 2009 and 2015 was well within the FBI’s purview.”  “Indeed, [the subject] agreed to become an informant as part of his cooperation plea agreement with the government.”  “The court therefore finds that Defendants meet FOIA Exemption 7’s threshold requirement.”
   
• Exemption 7(C): The court relates that, “[i]nvoking Exemption 7(C), Defendants withheld identifying information regarding the FBI’s special agents and professional staff.”  “Defendants argue that such withholdings are lawful because all FBI special agents and professional staff have important responsibilities regarding investigations that carry privacy risks if their identifying information is disclosed.”  “Defendants further argue that ‘no public interest would be served by disclosing the identities of these FBI professional staff to the general public because their identities would not, themselves, significantly increase the public's understanding of the FBI’s operations and activities.’”  “The court agrees.”
  
  “Defendants also appropriately withheld names and identifying information of other third-party groups: the victims of [the subject’s] crimes, people who were merely mentioned in responsive records, people who were of investigative interest to the FBI, and people who were non-FBI government personnel mentioned in responsive witness statements.”  “Defendants’ rationale for doing so for each group is similar.”  “Each group’s privacy interests are at stake if their identifying information is publicly disclosed.”  “According to [Defendant’s] Declaration, the victims face ‘unnecessary attention’ and may be further traumatized.”  “The third parties whose information is mentioned because they simply encountered an FBI investigative subject could suffer unwarranted and ‘extremely negative’ public attention.”  “Investigative subjects and their families could face ‘harassment or embarrassment, as well as undue public attention.’”  “The non-FBI personnel’s ‘effectiveness in assisting or participating in future FBI investigations’ could be impaired.”  “The public interest here is negligible for the same reasons articulated for the FBI special agents and professional staff.”  “No operation or activity in the FBI would be revealed to the public by publicizing the identifying information of other third parties in the records Plaintiff seeks.”  “The court therefore finds that Defendants’ withholdings of the other third parties’ identifying information is lawful under FOIA Exemption 7(C).”
   
• Exemption 7(D):  “The court . . . finds that Defendants’ withholding of confidential information provided by [the subject] is lawful under FOIA Exemption 7(D).”  “Defendants, having confirmed [the subject’s] identity as an informant, now seek summary judgment for withholding the ‘information furnished’ by [the subject] – the second prong of Exemption 7(D).”  “They argue that such information about [the subject’s] criminal activities and that of other third parties carries ‘implied confidentiality’ ‘due to the circumstances surrounding this individual’s assistance, the risks he likely faced based on his assistance to the FBI, the singular nature of the information he provided, and his relationship to the crimes.’” “[T]he court finds that the information that [the subject] provided was impliedly confidential.”  “According to [Defendant’s] Declaration, after [the subject] was indicted on mortgage fraud charges, he became an informant in 2009 because of his ‘relationship’ and ‘proximity to the crimes’ committed by ‘other third parties of investigative interest and involved business interactions.’”  “[The subject’s] relationship with these third parties arose through his own ‘professional business.’”  “Although [the subject] is currently incarcerated and no longer an informant, if the information he provided was revealed, he could face ‘potential retaliation,’ the ongoing investigations or indictments of the third parties might be undermined, and the victims may be ‘unable to recover their losses.’”  “Violence and risk of harm are precisely the reasons for an implied grant of confidentiality.”  “The FBI narrowly tailored its Exemption 7(D) justification to specific relationships [the subject] developed while conducting the mortgage fraud scheme for which he was convicted.”  “If the identities of interviewees and witnesses who provide information about third parties’ criminal activities are subject to implied confidentiality, then information from a confirmed, paid informant, like [the subject], must be given similar protection.”
  
  Separately, “Defendants invoke FOIA Exemptions 6, 7(C), 7(D), and 7(E) to argue that [the subject’s] entire informant file can be categorically withheld.”  “The types of records normally exempt from disclosure within an informant file include photographs, maintenance and payment documents, record checks/database searches, interview forms, documents implementing sensitive investigative techniques, envelopes, other documentations, handwritten notes, and emails.” “Here, Defendants attest that [the subject’s] informant file is largely separated into two categories: evidentiary/investigative and administrative materials.”  “The first category contains information provided by the informant and other physical or documentary evidence.”  “The second contains reporting communications within the FBI, standardized forms, like informant payments, and administrative instructions.” “Defendants’ categorical withholding appears to be appropriate under Exemption 7(D) for the information [the subject] ‘furnished.’”  “As Defendants attest in [Defendants’] Declaration, informant files ‘by their very nature, consist of identifying information of confidential sources and information provided by these sources.’”  “[The subject’s] identity is now confirmed.”  “But the information he provided remains sensitive.”  “Disclosing ‘even seemingly benign information’ such as ‘dates, times and other administrative markings’ in [the subject’s] file ‘would reveal key pieces of information about when and what information particular informants provided to the FBI.’”  Similarly, “[b]ecause [the subject’s] file includes information about the entire scope of his cooperation, the fact that two previous FBI payments to [the subject] are public does not otherwise weaken the ‘inference’ of confidentiality extended to [the subject’s] entire informant file.”
   
• Exemption 7(E): “[T]he court finds that Defendants’ withholding of its storage method information was lawful under FOIA Exemption 7(E).”  “According to [defendant’s] Declaration, the FBI’s ‘specific collection device, collection methods, and storage techniques and procedures’ as to [the subject] are not public.”  “The storage device at issue contains [the subject’s] ‘investigatory information relating to [the] mortgage fraud activities.’”  “Attached to the device is a ‘device identification number.’”  “That information ‘will be used for future retrieval’ by the FBI to analyze other mortgage fraud crimes.”  “Publicizing any of this information would diminish these procedures’ ‘relative utility’ and ‘provide criminals’ with information to ‘locate where investigatory information is stored.’”
   
• Litigation Considerations, Evidentiary Showing, Foreseeable Harm Showing:  The court holds that “Defendants have met their burden.” “They argue, and the court agrees, that ‘with respect to every record (or portion thereof) satisfying one or more exemptions, the FBI individually considered whether foreseeable harm would result from disclosure of the record (or portion thereof).’”  “Regarding Exemption 7(C), the FBI’s declarant explained how disclosing third party information could risk their identities, prejudice other investigations, benefit other lawbreakers, or encourage retaliation.”  “After all, ‘disclosure of identifying information is a harm in and of itself.’” “Similarly, the FBI declarant explained that harm could result from disclosure of the confidential information that [the subject] provided under Exemption 7(D).”  “Disclosing such information could create fear for other informants and adversely affect the FBI’s investigations.”  “Finally, as the court briefly discussed . . . , Exemption 7(E) protects against revealing the FBI’s storage device and identification numbers because disclosure could risk ‘a decrease in the viability of the FBI’s informant program, hindering the FBI’s ability to enforce the law, and risk increase of law enforcement circumvention.’”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court relates that “[t]he FBI’s declarant avers that it processed all records responsive to Plaintiff’s FOIA request to achieve maximum disclosure consistent with the access provisions of FOIA.”  “Every effort was made to provide Plaintiff with all the information in the public domain and all reasonably segregable, non-exempt information.”  “[T]he court finds that Defendants performed an ‘independent consideration of whether any portion of’ the exempted . . . records ‘could be segregated and released without causing foreseeable harm.’”  “Together, that is sufficient to satisfy the FBI’s burden.”