The opinion of the court was delivered by: LAMBERTH
This matter comes before the court on the cross-motions for partial summary judgment, pursuant to Fed. R. Civ. P. 56(c), of plaintiff Gail G. Billington and defendant U.S. Department of Justice and on plaintiff's collateral motions. Based upon the memoranda in support of and in opposition to the cross-motions, the entire record thereto and the relevant law, plaintiff's motions will be granted in part and denied in part; defendant's motion will be granted in part and denied in part.
A. Factual and Procedural History
Plaintiff Gail G. Billington initiated this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. This litigation concerns an enormous amount of documents. Billington originally submitted ninety FOIA requests to thirty FBI field offices between November 1991 and February 1992. She sought information about a number of individuals and organizations associated with the National Caucus of Labor Committees (NCLC).
On February 21, 1992, Billington filed this lawsuit regarding the FBI's compliance with her requests to fifteen of those FBI offices. On July 22, 1992, deliberation over this matter was postponed until May 8, 1995, when Judge George H. Revercomb granted the FBI's Motion to Stay Proceedings. Subsequently, on July 19, 1993, this case was reassigned to this court. Since December 1994, the FBI and other agencies have released numerous documents.
The parties agreed in October 1996 to split this litigation into two stages: 1) all documents, including those referred to "referral agencies," except for documents from four specified "Internal Security" files, and 2) the documents from the four "Internal Security" files. At present, the court addresses issues related to the first stage.
This case involves over 40,000 documents. Processing this number of documents is an enormous task. As illustration to the amount of work involved in this request, the parties corresponded at least 57 times between January 5, 1995 and August 5, 1997 on matters related to processing, cost and release of the documents. In a December 1996 Notice of Filing, Plaintiff provided specifications of challenged documents for this stage from the following twenty subject matters: 1) Baltimore file # BA 196-1284; 2) Indianapolis file # IP 196-1593; 3) New York file # NY 196-3975; 4) New York file # NY 196-4052; 5) Philadelphia file # PH 196-1893; 6) Irene Beaudry; 7) Michael Billington; 8) Campaigner Publications; 9) Caucus Distributors; 10) Executive Intelligence Review; 11) Executive Intelligence Review News Service; 12) Fusion Energy Foundation; 13) Paul Gallagher; 14) International Caucus of Labor Committee; 15) National Caucus of Labor Committees; 16) New Solidarity International Press Service; 17) Publication and General Management; 18) Suzanne Rose; 19) Schiller Institute; and 20) U.S. Labor Party.
Many of the documents had to be referred by the FBI to numerous other governments agencies and entities, including the Internal Revenue Service, Department of Energy, Immigration and Naturalization Service, Central Intelligence Agency, Department of Justice, Department of State, Executive Office of United States Attorneys, Secret Service, the Army Intelligence and Security Command, and the Defense Intelligence Agency.
Defendant began providing Vaughn declarations from the FBI and referral agencies in September 1997, and then filed a motion for summary judgment concerning plaintiff's challenges on December 15, 1997. Plaintiff responded with her cross-motion for partial summary judgment and collateral motions on February 3, 1998.
Many of the documents in this case have been filed under seal under the terms of a consent order issued in LaRouche v. Kelley, No. 75 CIV 6010 (S.D.N.Y. March 5, 1979).
B. FOIA & Standard of Review
The Freedom of Information Act, 5 U.S.C. § 552, as amended by the Freedom of Information Reform Act of 1986, §§ 1801-04 of Pub.L. No. 99-570, 100 Stat. 3207, 3207-48 (1986) establishes a statutory right for citizens to gain access to government information. The Act creates a basic presumption that agency records should be accessible to the public and commands government agencies to make records available upon demand unless the request falls within one of nine exemptions. The defendant justifies nondisclosure by invoking six of the nine exemptions. The court will discuss 1) the contested FBI withholdings by exemption group; 2) the plaintiff's request for additional searches; 3) disputes over cross-reference information and an allegedly wrong document in the Vaughn index, Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973); and 4) challenges concerning information referred to other agencies.
Summary judgment in a FOIA action is appropriate when the pleadings together with the declarations show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505; Alyeska Pipeline Serv. Co. v. EPA, 272 U.S. App. D.C. 355, 856 F.2d 309, 313 (D.C. Cir. 1988) (mere conflict in affidavits not sufficient to preclude an award of summary judgment); Weisberg v. Department of Justice, 200 U.S. App. D.C. 312, 627 F.2d 365, 368 (D.C. Cir. 1980). Courts review FOIA suits de novo. However, the agency carries the burden of justifying nondisclosure, See 5 U.S.C. § 552(a)(4)(B); Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989).
Agencies may rely on the declarations of its officials in order to sustain their burden of proof in a FOIA case. See Oglesby v. Department of the Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 68 (D.C. Cir. 1990); Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339, 352 (D.C. Cir. 1978). The agency's declarations are accorded a presumption of expertise. Pharmaceutical Manufacturers Ass'n v. Weinberger, 411 F. Supp. 576, 578 (D.D.C. 1976.). However, the declarations must be clear, specific and adequately detailed; they must describe the withheld information and the reason for nondisclosure in a factual and non-conclusory manner; and they must be submitted in good faith. See Hayden v. NSA, 197 U.S. App. D.C. 224, 608 F.2d 1381, 1387 (D.C. Cir. 1979). Unless the affidavits are deficient, the court need not conduct further inquiry into their veracity. 608 F.2d at 1387. A plaintiff must show that the claimed exemption is improperly asserted in order to have a triable issue of material fact that will preclude awarding summary judgment to the defendant.
Exemption 1 permits agencies to withhold information that is "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) [is] in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). Executive Order 12958 currently controls. Summary judgment may be awarded to a defendant agency invoking Exemption 1 "only if (1) the agency affidavits describe the documents withheld and the justifications for nondisclosure in enough detail and with sufficient specificity to demonstrate that material withheld is logically within the domain of the exemption claimed, and (2) the affidavits are neither controverted by contrary record evidence nor impugned by bad faith on the part of the agency." Canning v U.S. Department of Justice, 848 F. Supp. 1037, 1049 (D.D.C. 1994) citing the standards set forth in King v. United States Department of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210, 217 (D.C. Cir.1987); see also Halperin v. CIA, 203 U.S. App. D.C. 110, 629 F.2d 144, 148 (D.C. Cir. 1980); Voinche v. FBI, 940 F. Supp. 323, 328 (D.D.C. 1996).
Agencies may meet this burden by "filing affidavits describing the material withheld and the manner in which it falls within the exemption claimed." King 830 F.2d at 217. Courts must accord substantial weight to an agency's affidavit concerning the classified status of a disputed record, because "'executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosure.'" McDonnell v. United States, 4 F.3d 1227, 1243 (3rd Cir. 1993) (quoting Salisbury v. United States, 223 U.S. App. D.C. 243, 690 F.2d 966, 970 (D.C. Cir. 1982)). If the agency's statements meet the aforementioned standard of reasonable specificity and good faith, the court "is not to conduct a detailed inquiry into whether it agrees with the agency's opinions." Halperin, 629 F.2d at 148.
Accordingly, this court reviewed the submitted affidavits, Vaughn indices and agency actions to determine whether the FBI meets this standard of reasonable specificity and good faith. The following is a discussion of the specific challenges proffered by the plaintiff to compel disclosure of information withheld under this exemption.
A. Publicly Disclosed Information
In her challenges to Exemption 1 redactions, Billington cites documents which she believes were improperly withheld or redacted because they had been disclosed publicly. When asserting that material is publicly available, plaintiff bears the burden of production. Davis v. Department of Justice, 296 U.S. App. D.C. 405, 968 F.2d 1276, 1279 (D.C. Cir.1992); Afshar v. Department of State, 226 U.S. App. D.C. 388, 702 F.2d 1125, 1130 (D.C. Cir. 1982) ("A plaintiff asserting a claim of prior disclosure must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld."). Both United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989), and the District of Columbia Circuit's public domain cases "require the requester to point to 'specific' information identical to that being withheld." Davis, 968 F.2d at 1280. Otherwise, the government would have to prove the "negative--that information has not been revealed," which would require "an exhaustive, potentially limitless search." Id. 968 F.2d at 1279 (citing Occidental Petroleum Corp. v. SEC, 277 U.S. App. D.C. 112, 873 F.2d 325, 342 (D.C. Cir. 1989)).
As discussed below, Billington challenges a number of withholdings by asserting that they have been released in the public domain.
1. Intelligence Methods and Categories of Intelligence Activity
First, Billington contests the FBI's withholding of case characters, described as intelligence activities and representing categories of information. Billington states that many of these intelligence activities previously have been disclosed both in the FBI's Foreign Counterintelligence Manual and in other documents released under FOIA by the FBI. (2nd Canning Decl., PP 8-10 and Plaintiff's Memorandum, 5). Billington advances similar arguments regarding the disclosure of intelligence methods, pointing to examples where intelligence methods previously have been disclosed under FOIA. (2nd Canning Decl., PP 13-17 and Plaintiff's Memorandum, 7).
The defendant argues that disclosure of such information might assist a hostile analyst's attempt to piece together classified information. (Davis Decl., Sept. 1997, 16-17 and Defendant's Reply, p.3). The defendant underscores that Executive Order 12958 sec 1.8(e) states: "compilations of items of information which are individually unclassified may be classified if the compiled information reveals an additional association or relationship."
Billington counters that the aggregate result is not self-evident and that this court will abandon de novo review if it defers to the FBI's word. This court disagrees. In matters regarding Exemption 1, the aggregate result does not have to be self-evident. In a case where the FBI used similar categories, and the declarations were "not overly categorical in nature, but. . . instead narrowly tailored to reveal as much detail as possible, without disclosing information that must be kept secret in order to protect legitimate national security concerns," the declarations were deemed conducive to meaningful judicial review. Canning v U.S. Department of Justice, 848 F. Supp. 1037, 1044 (D.D.C. 1994). Courts are strongly inclined to accept an agency's determination that disclosure of information regarding intelligence sources and methods will cause damage to national security. Gardels v. CIA, 223 U.S. App. D.C. 88, 689 F.2d 1100, 1106 (D.C. Cir. 1982) (this is "necessarily a region for forecasts in which [the agency's] informed judgment as to potential future harm should be respected.").
Under FOIA, courts cannot "pry loose from the government even the smallest bit of information that is properly classified or would disclose intelligence sources or methods." Afshar, 702 F.2d at 1130. In Afshar, the agency could safeguard such information even where the CIA previously acknowledged the existence of "information that fits into one of the categories of information" at issue. Id. Similarly, that the FBI may have released similar types of information in one case does not warrant disclosure here.
Billington pointed to no specific instances where the FBI withheld information in the public domain. Rather, after citing examples of the types of case numbers that the FBI has revealed in the past, she makes a blanket assertion regarding these types of categories: "If these categories of FBI intelligence activities in the cited time frames have been withheld by defendant, they should be disclosed to plaintiff." (Plaintiff's Memorandum, 6). The District of Columbia Circuit held that a plaintiff did not meet his "burden of showing that there is a permanent public record of the exact portions [of tapes] he wishes" by submitting newspaper stories. Davis, 968 F.2d at 1280. Similarly, plaintiff does not meet her burden without an exact showing that these activities have been disclosed in these documents.
Without more, this court will not question the defendant's Exemption 1 classification, because there was no "bad faith or a general sloppiness in the declassification or review process. . ." Afshar, 702 F.2d at 1131. The FBI's affidavits sufficiently detail its reasoning for the various levels of specificity which it gave regarding foreign government information, intelligence activities, and/or information relating to foreign relations or activities. Consequently, this court will not second-guess the department's judgment that "disclosure of even publicly known intelligence methods could . . . provide hostile analysts with classified information." (Defendant's Reply, 3). Rather, this court defers to the agency's judgment that disclosure would cause such harm to the national security. See Id. at 1131. Billington has not met her burden of production and this court grants summary judgment to the defendant regarding these materials.
2. Surveillance Efforts Regarding Irene and Pierre Beaudry
Next, Billington asserts that the defendant should have to disclose surveillance efforts regarding Irene and Pierre Beaudry. (Plaintiff's Reply, p.3). An October 7, 1997 letter from Billington to Assistant United States Attorney Scott Harris addressed the ongoing dispute regarding the "Irene Beaudry" documents. At that time, Billington expressed a series of concerns about the FBI's Vaughn indices by Sherry Davis and Bobbie Olivarri, including redactions in the Irene Beaudry documents. Consequently, both Davis and Olivarri submitted supplemental declarations on December 15, 1997, detailing the justifications for the redactions.
Olivarri stated that portions were declassified and were being released in their entirety. Other portions were still redacted pursuant to Exemptions 1 and 7(C). Billington argues that the court should award summary judgment on this matter because a document allegedly about the Beaudrys was released to Lyndon LaRouche under a separate FOIA request and not in the instant release. (2nd Canning Decl., P 18). She argues that once the existence of the surveillance efforts has been disclosed, the Beaudry documents should undergo a new declassification.
This court disagrees. The document appears to merely disclose the existence of the teletypes, information which the FBI disclosed in their declarations. (Olivarri Decl., Nov. 1997, P 31). The document, marked OM 196B-1340, apparently from an Omaha office, states at the bottom: "Since these teletypes are in the possession of Alexandria, the reference is provided only as a matter of information."
As the plaintiff has not provided evidence that actual information about the "surveillance efforts" has been released, she has not met her burden of production. In contrast, the defendant provided either the documents, redactions, or the appropriate justifications for withholding the documents at issue. Further, that the FBI may not have released one page which might contain a reference to the Beaudrys in an informational description of another FBI office's investigation does not warrant compelling the FBI to reveal more information about such "surveillance efforts." In addition, defendant agreed, in its reply, to disclose reference to Pierre Beaudry's name in the cited documents.
Billington asks this court to order the FBI to release FBI case numbers which she states were cited in the CIA's Vaughn indices. Defendant counters that release by the CIA does not constitute public disclosure by the FBI.
Release of information by one agency does not mandate another agency to disclose the same. A court need not require an agency to "release all related materials any time it elected to give the public information about a classified matter." Public Citizen v. Department of State, 304 U.S. App. D.C. 154, 11 F.3d 198, 202 (D.C. Cir. 1993); accord Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 F.2d 724 (D.C. Cir. 1981)(holding that the CIA did not waive the applicability of Exemption 1 to all classified information relating to a subject by voluntarily releasing some formerly classified information about that subject).
This court finds that Billington has not met her burden here. She does not provide specific enough information to determine why the FBI should release these numbers and where they may have been redacted. Although she "speculates that these are documents in the 'Irene Beaudry' release, in which the FBI has classified the file numbers," she does not give factual proof. (2nd Billington Decl., P 37.) Mere speculation does not satisfy the high burden a requester must meet to prove that information is in the public domain. Even if these numbers were disclosed by the CIA, an agency does not "waive the applicability of FOIA Exemption 1 to all classified information relating to a subject by voluntarily releasing some formerly classified information about that subject." Public Citizen, 11 F.3d at 202.
4. Intelligence Investigations of New Solidarity International Press Service and the Fusion Energy Foundation
Plaintiff also argues that information about the Intelligence Investigation of New Solidarity International Press Service and the Fusion Energy Foundation should be disclosed because information about these entities has been unveiled. Plaintiff submits a letter from the FBI Director to the Attorney General dated August 19, 1997 (3rd Canning Decl., Exhibit 2) to prove that identical information has been released by the government (Plaintiff's Reply, 5), and consequently that the FBI should have to release further information about the alleged basis and scope of the FBI's investigation of these entities. Billington does not clear the high hurdle necessary to compel disclosure. While the letter discusses the existence of these two entities within the National Caucus of Labor Committees, it does not detail the FBI's investigation of the sub-groups. To the contrary, the letter states that the FBI has no informants in the International Press Service arm of the NCLC. Further, as the defendant states (Defendant's Reply, p.6), Billington neither specifies how the FBI may have withheld such information, nor points to any specific documents that were withheld. Without such information, this court will not compel the FBI to release documents that may or may not exist. See Davis, 968 F.2d at 1280.
B. Information from Foreign Governments
Regarding Exemption 1 and foreign government information, Billington challenges the adequacy of Special Agent Davis' affidavit, and requests a supplemental submission to state what Davis' "personal review (and information-received) revealed to her, showing that there were explicitly understandings of confidentiality." Countering the withholding of one document, Billington states "it is highly unlikely that the entire document is devoted to the relationship between the FBI and the foreign agency." (Plaintiff's Reply, 6).
This court does not agree that the FBI's affidavits are insufficient. Rather, to compel the agency to supply more information would muddle the purpose of the exemption. Fitzgibbon v. Secret Service, 747 F. Supp. 51, 55-56 (D.D.C. 1990). ("Plaintiff's arguments to the contrary are tantamount to a claim that, in order to pass muster, the affidavits must be so specific as to cause the very harm that the exemption was intended to avoid."). It is entirely appropriate for affidavits regarding FOIA's national security exemptions to be somewhat less specific. See e.g., Abbotts v. Nuclear Regulatory Commission, 247 U.S. App. D.C. 114, 766 F.2d 604, 606 (D.C. Cir. 1985)(agency affidavits concerning classified status of documents in a FOIA review entitled to substantial weight). Billington's assertion that it is "highly unlikely" that a particular exemption is appropriate is conclusory. Billington would like the court to apply the tougher approach specified by the Supreme Court in United States Dep't of Justice, et al. v. Landano, 508 U.S. 165, 124 L. Ed. 2d 84, 113 S. Ct. 2014 (1993). However, as both parties state, Landano does not apply to Exemption 1 withholdings, and this court will not, as the plaintiff requests, apply it here.
This court finds no reason to question the basis of Special Agent Davis' Declaration since the affidavit "fairly describes the content of the material withheld and adequately states its grounds for nondisclosure, and . . . those grounds are reasonable and consistent with the applicable law." Spannaus v. Department of Justice, 813 F.2d 1285, 1289 (4th Cir. 1987). Davis has been "designated by the Attorney General of the United States as an original Top Secret classification authority and declassification authority pursuant to EO 12958, Sections 1.4 and 3.2." All of her classification determinations were reviewed by the Department of Justice, Department Review Committee. She detailed the justification for both withholding foreign government information generally and within each document with specificity and at length. This court gives the defendant the appropriate deference as the affidavits are reasonably specific and there is no evidence of bad faith. Halperin, 629 F.2d at 148.
C. Classification by the FBI
The following regards various documents which Billington challenges because she states that they were redacted in violation of Executive Order 12958, which prohibits classification of information to conceal violations of law or to prevent embarrassment to a person, organization, or agency. Executive Order 12958 § 108(1) and (2).
Billington asserts that withheld text of the "Nolan letter,"
as well as subsequent communication, "strongly implies" that the foreign official portrayed LaRouche and the publication "Executive Intelligence Review" as agents of Soviet foreign policy. She states that "circumstantial evidence strongly suggests" an effort by the British Governments to suppress LaRouche's influence in the Reagan Administration. She purports that "disinformation in the Nolan letter and the apparently-related documents, may have been classified to shield the FBI and the foreign government from embarrassment, and/or to conceal information about FBI efforts to suppress LaRouche's and EIR's First Amendment activities." (Plaintiff's Reply, 8). In support of her claims, Billington pieces together self-described "circumstantial evidence." She believes that this information should be revealed under Executive Order 12958.
Upon review of the documents, this court does not come to the same conclusion. Billington's speculative evidence does not give this court reason to believe that the FBI classified information in order to conceal embarrassing information. There is simply insufficient evidence to corroborate Billington's theory that the information was classified in order to save the British from embarrassment. Billington does not provide any proof of the FBI's motives in classifying the information. Rather, the FBI stated that it withheld information that was "provided with the explicit understanding that the information and cooperation would remain classified," and that disclosure "could reasonably be expected to cause serious damage to the national security" as it would Violate "the FBI's promise of confidentiality." (Davis Decl., Sept. 1997, p. 121).
Courts have refused to allow conclusory accusations to raise "a triable issue or to call for further inquiry" as to the reasonableness of an agency's judgment to disclose Exemption 1 withheld information. Gardels v. CIA 223 U.S. App. D.C. 88, 689 F.2d 1100, 1106 (D.C. Cir. 1982)("The material in plaintiff's counter-presentation . . . consists of conclusory denials of the Agency's position on the dangers from foreign intelligence . . . At bottom, plaintiff's material does no more than differ from the Agency's informed position which we must accept if plausible and reasonable."). In this case, Billington's evidence whittles down to a string of if-then statements and suggestions of government conspiracy which give this court no basis upon which to even warrant a probe of bad faith. This court finds no reason to doubt the FBI's affidavit or to believe that the FBI was involved in an attempt to cover-up information. The affidavits submitted by the FBI are neither conclusory nor overly vague, and the Court is satisfied that they provide sufficiently specific information to justify the agency's withholding decisions.
Furthermore, First Amendment concerns or questions over the FBI's investigation are not at issue in this case. Such accusations are better dealt with by another court. Smith v. Bureau of Alcohol, Tobacco and Firearms, 977 F. Supp. 496, 500 (D.D.C. 1997) (stating that allegations a federal prosector violated constitutional rights to exculpatory evidence are better addressed by the district court where the plaintiff was convicted).
Likewise, plaintiff makes conclusory accusations regarding Document Number 2 of NY 196B-4052. She asserts that this document partially disclosed a number of indices search slips, including one on the "LaRouche Campaign." She suggests that if the withheld file information "reflects illegal, improper, or embarrassing Government intelligence activity conduct against a U.S. presidential campaign, it is improperly classified." (Plaintiff's Memorandum, 13). She points to the "array of 'dirty tricks' (including 'Watergate') conducted for the Nixon Administration against the DNC and Democratic candidates by various agencies. . ." (Plaintiff's Reply, p. 8, footnote 6) to prove that such conduct has occurred before.
This court will not entertain irrelevant arguments about previous Presidential campaigns. Plaintiff advances unsubstantiated accusations by inferring, without substantive proof, that the FBI is engaged in some sort of "dirty tricks" campaign. Such arguments are of no value. Accordingly, this court will not compel the disclosure of these lines of text.
The defendant is entitled to summary judgment regarding these and the previously discussed Exemption 1 claims. The FBI used proper classification procedures and has shown that the withheld material falls within the boundaries of Exemption 1. Billington's assertions have neither controverted the defendant's affidavits nor raised doubts about its good faith.
5 U.S.C. § 552(b)(2) exempts from mandatory disclosure records "related solely to the internal personnel rules and practices of an agency." Exemption 2 protects internal agency matters so routine or trivial that they could not be subject to a genuine and significant public interest. Department of the Air Force v. Rose, 425 U.S. 352, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). Trivial administrative data such as file numbers, mail routing stamps, initials, data processing notations, and other administrative markings may be withheld under Exemption 2. Lesar v. Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472 (D.C. Cir. 1980)(informant codes held a matter of internal significance in which the public has no substantial interest and which bear no relation to the substantive contents of the records released).
Challenging Exemption 2 withholdings, Billington points to two documents that may have been improperly redacted initially. One document redacts only one line which was subsequently disclosed. She calls the original withholding improper as it was a redaction of an agency name, and she believes that such a redaction does not "relate solely to the internal rules and practices of the agency." 5 U.S.C. 552(b)(2). The original redactions of the other document were disclosed after referral to another agency. Billington asks for disclosure of any agency names which remain withheld under Exemption 2. Defendant counters that Billington has presented no proof that the FBI asserted Exemption 2 simply to withhold "agency names," or that the FBI engaged in bad faith. (Defendant's Reply, 10).
As the relevant withholdings have been released and Billington does not point to any other documents where the defendant may have similarly withheld information, this court need not address the merits of redacting agency names. Rather, the court must make a determination whether these examples justify compelling the FBI to reprocess Exemption 2 redactions.
These two examples hardly warrant a complete review of Exemption 2 redactions. When documents are released within two years of their original exemption claims, a district court must examine closely the initial claims. Bonner v. Department of State, 289 U.S. App. D.C. 56, 928 F.2d 1148, 1151 (D.C. Cir 1991). While a full release of documents previously withheld does not demonstrate bad faith, doubt may be cast on the agency's original exemption claim when the information in question is found releasable within two years. Therefore, a district court must examine closely the initial exemption claims. Id. A Vaughn index for documents that are part of a representative sample should explain why the once withheld portions were excised at the agency's initial review. If the court determines that the original exemption claims for "significant portions" of the original documents do not survive, the propriety of other withholdings may be called into question. Id. 928 F.2d at 1153.
The examples presented by the plaintiff are so slim that there are no "significant portions." Although reprocessing the entire group may result in further declassification, the purpose of sampling is to reduce the administrative burden of large FOIA requests. Id. Without further evidence of initial improper withholdings, there is no reason to doubt the agency's Exemption 2 redactions and this court will neither order their disclosure nor compel review of ...