United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, District Judge.
Plaintiff Lawrence Rosenberg submitted Freedom of Information Act requests to various federal agencies seeking, among other things, records related to the raid of Agriprocessors, Inc., meatpacking plant and the subsequent prosecution of Sholom Rubashkin whom Plaintiff represents. Dissatisfied with the agencies' responses to his request, Plaintiff filed suit against United States Immigration and Customs Enforcement, the United States Marshals Service, the Executive Office for United States Attorneys, and the Federal Bureau of Investigation. On July 22 and 23, 2013, the Court granted the Motions to Dismiss or, in the alternative, for Summary Judgment filed by United States Immigration and Customs Enforcement, the Executive Office for United States Attorneys, and the United States Marshals Service. See Order (July 22, 2013), ECF No. ; Order (July 23, 2013), ECF No. . On August 11, 2013, the Court granted in part the FBI's Motion for Summary Judgment and denied in part the Plaintiff's Cross-Motion for Summary Judgment, but held in abeyance the parties' motions as to the adequacy of the agency's search and the agency's application of Exemption 7(D), as well as the agency's application of Exemptions 6, 7(C), and 7(E) on a specific set of pages identified by the Court. See Order (Aug. 11, 2013), ECF. No . The Court requested supplemental briefing on the application of the exemptions held in abeyance. Id.
Presently before the Court is the FBI's  Renewed Motion for Summary Judgment. Upon consideration of the pleadings,  the documents submitted to the Court for in camera review, the relevant legal authorities, and the record as a whole, the Court finds the FBI has demonstrated that it conducted an adequate search for potentially responsive documents and has justified its redaction of information pursuant to Exemptions 6 and 7(C) on all but one of the pages identified in the Court's August 2013 Order. The Court further finds that the FBI has justified its redaction of information on all except fifteen of the pages on which it invoked Exemption 7(D) in addition to Exemptions 6 and 7(C). Finally, the Court finds the FBI has justified its redaction of information that it withheld pursuant to Exemption 7(E). Accordingly, the FBI's  Renewed Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. Furthermore, the FBI's  Motion for Summary Judgment and Plaintiff's  Cross-Motion for Summary Judgment, portions of which were previously held in abeyance, are GRANTED IN PART and DENIED IN PART.
A. Factual Background
Sholom Rubashkin managed a kosher meatpacking company in Postville, Iowa, named Agriprocessors, Inc., which at one point employed over one thousand individuals. United States v. Rubashkin, 655 F.3d 849, 853 (8th Cir. 2011). In May 2008, Immigration and Customs Enforcement raided the plant, and arrested nearly four hundred employees for immigration violations, bringing criminal charges against most of the arrestees. Id. at 854. "Around that time, " the United States Attorney's Office in the Northern District of Iowa informed Mr. Rubashkin that he was the target of a federal investigation for financial and immigration crimes. Id. Mr. Rubashkin was arrested in November 2008 and charged by indictment with 163 counts, including fourteen counts each of bank and wire fraud, and sixty nine counts of harboring undocumented aliens for profit. Mr. Rubashkin was eventually convicted of seventy one counts of bank, mail, and wire fraud, money laundering, and false statements to bank, in addition to fifteen counts of willful violations of orders of the Secretary of Agriculture. Id. Relying on documents obtained through a Freedom of Information Act request submitted prior to his trial, Mr. Rubashkin subsequently moved for a new trial, or for discovery, which the trial court denied. Id. at 856. The Eighth Circuit affirmed the denial of Mr. Rubashkin's motion for a new trial, as well as his underlying conviction and sentence on September 16, 2011. Id. at 869.
By letter dated September 28, 2011, Plaintiff, an attorney who represents Mr. Rubashkin and his wife and their children, submitted a Freedom of Information Act ("FOIA") request to the FBI seeking, among other things: (1) "any and all information relating to the raid of Agriprocessors, Inc., a meatpacking plant in Postville, Iowa, on May 12, 2008 ("the raid") and the subsequent prosecution of Sholom Rubashkin"; (2) "any and all information relating to actions proposed to take place in year 2000 against Agriprocessors, Inc., as documented in the Des Moines Register's August 6, 2011 article, Immigrant Raid Halted in 2000 on Election Fear, Ex-Agent Says'"; (3) "any and all information relating to any actions considered to take place against Iowa Turkey Products, Inc. of Postville, IA"; (4) "any and all information relating to the class action case Salazar v. Agriprocessors, 527 F.Supp.2d 873 (N. D. Iowa 2007)"; and (5) any and all documents reflecting communications between "any government agency or official" and over 101 individuals regarding Mr. Rubashkin or Agriprocessors. Hardy Decl., Ex. A (Pl.'s FOIA Request), ECF No. [46-1], at 2-8. The Plaintiff's request included 39 numbered paragraphs outlining his specific requests. See id.
The FBI acknowledged the Plaintiff's request by letter dated October 5, 2011, assigning the request number 1174698. Def.'s Stmt. ¶ 3. The FBI advised the Plaintiff that it would search the "indices to [the FBI's] Central Records System for the information responsive to this request." Id.; Hardy Decl., Ex. B (10/5/11 Acknowledgment Ltr.). Two weeks later, the FBI notified the Plaintiff that it located 1, 223 potentially responsive pages. Hardy Decl., Ex. C (10/19/11 Ltr. FBI to Pl.). The letter advised the Plaintiff that if all of the potentially responsive pages were to be released, the Plaintiff would owe the FBI $112.30 in duplication fees to receive a paper copy or $20.00 to receive the release on a CD. Id. The FBI did not receive a response to its October 19, 2011, letter from the Plaintiff, and did not produce any documents in response to the request.
The Plaintiff filed suit on March 23, 2012. On September 7, 2012, the FBI processed the pages identified as potentially responsive to the Plaintiff's request. Hardy Decl. ¶ 11. Of the 1, 233 pages initially identified, 257 were found to be duplicates. Second Hardy Decl., ECF No. [55-1], ¶ 8; Hardy Decl. ¶ 4. The FBI released 39 pages in full and 322 pages in part. Hardy Decl. ¶ 4. One hundred and fifty five pages were withheld in their entirety pursuant to various FOIA exemptions. Id. The remaining 450 pages were withheld because they are court materials sealed by the United States District Court for the Northern District of Iowa. Id.
B. Procedural Background
The parties filed cross-motions for summary judgment in the first part of 2013. The FBI argued that it had conducted an adequate search for documents potentially responsive to the Plaintiff's FOIA request and that it properly withheld certain information from Plaintiff pursuant to FOIA exemptions 3, 6, 7(C), 7(D), and 7(E). Although the Court granted summary judgment on several of the FBI's arguments, the Court found that the FBI had failed to demonstrate that it conducted an adequate search for potentially responsive documents, and also failed to justify why certain information was redacted pursuant to FOIA exemptions 6, 7(C), and 7(E). See Mem. Op. (Aug. 11, 2013), ECF No. , at 9-12, 15-21, 23-26. Consequently, the Court ordered the FBI to supplement its motion for summary judgment regarding the adequacy of its search and its application of FOIA exemptions 6, 7(C), and 7(E) to justify specific redactions in certain responsive documents. See Order (Aug. 11, 2013), at 2. In addition, because the Court found the Plaintiff did not fully articulate his challenge to the FBI's invocation of Exemption 7(D) until his reply brief, the Court provided the FBI an opportunity to supplement its showing as to the use of Exemption 7(D). See Mem. Op. (Aug. 11, 2013), at 22-23; Order (Aug. 11, 2013), at 2. The FBI filed its present Renewed Motion for Summary Judgment in response to the Court's August 11, 2013, Order requesting supplemental briefing.
II. LEGAL STANDARD
Congress enacted FOIA to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). Congress remained sensitive to the need to achieve balance between these objectives and the potential that "legitimate governmental and private interests could be harmed by release of certain types of information." Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc) (citation omitted), cert. denied, 507 U.S. 984 (1993). To that end, FOIA "requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material." Milner v. Dep't of Navy, 131 S.Ct. 1259, 1261-62 (2011). Ultimately, "disclosure, not secrecy, is the dominant objective of the Act." Rose, 425 U.S. at 361. For this reason, the "exemptions are explicitly made exclusive, and must be narrowly construed." Milner, 131 S.Ct. at 1262 (citations omitted).
When presented with a motion for summary judgment in this context, the district court must conduct a "de novo" review of the record, which requires the court to "ascertain whether the agency has sustained its burden of demonstrating that the documents requested... are exempt from disclosure under the FOIA." Multi Ag. Media LLC v. Dep't of Agriculture, 515 F.3d 1224, 1227 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its response to the plaintiff's request. 5 U.S.C. § 552(a)(4)(B). "An agency may sustain its burden by means of affidavits, but only if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Multi Ag Media, 515 F.3d at 1227 (citation omitted). "If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." Am. Civil Liberties Union v. U.S. Dept of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted). "Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail." Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 509 (D.C. Cir. 2011) (citation omitted). Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations "show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). With these principles in mind, the Court turns to the merits of the FBI's renewed motion for summary judgment.
The FBI seeks summary judgment on the grounds that it conducted an adequate search for responsive documents and properly withheld information pursuant to FOIA Exemption 7(D) and Exemptions 6, 7(C), and 7(E) on the pages identified by the Court in its August 2013 Order. The Court begins it analysis with a discussion of the adequacy of the FBI's search for documents before turning to the specific exemptions invoked by the FBI.
A. Adequacy of the FBI's Search
"An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.'" Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 390 (D.C. Cir. 1999) (citation omitted). "At summary judgment, a court may rely on [a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Ancient Coin Collectors Guild, 641 F.3d at 514 (citation and internal quotation marks omitted). "The agency cannot limit its search to only one or more places if there are additional sources that are likely to turn up the information requested." Valencia-Lucena, 180 F.3d at 391 (citation and internal quotation marks omitted). Ultimately, the adequacy of a search is "determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search." Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citation omitted).
In its August 2013 Memorandum Opinion, the Court found the two declarations prepared by David Hardy averring to the adequacy of the FBI's search lacking in several respects. First, neither Hardy declaration demonstrated that the FBI's search was "tailored to the nature" of the Plaintiff's request. Mem. Op. (Aug. 11, 2013), at 11. Specifically, the Court noted that while declarations stated that the FBI searched its Central Records System ("CRS") for responsive documents, it did not aver that the CRS is the only collection of files likely to contain responsive documents. Id. Moreover, even when Plaintiff challenged the adequacy of the FBI's search for emails, the FBI did not assert in the Second Hardy declaration that the FBI searched all systems of records "likely to possess the requested information." Id. In addition, the Court found that neither Hardy declaration "even attempts to establish that the requested communications between the FBI and various third parties prior to or after the raid are likely to be found in the [CRS]." Id. at 12.
With its Renewed Motion for Summary Judgment, the FBI now submits a third Hardy Declaration that offers a more complete justification of the adequacy of the FBI's search. Accordingly, the Court finds that the FBI has now provided sufficient evidence that its search was adequate. As explained in the FBI's first two sworn declarations, the FBI conducted a search of the CRS utilizing the "phonetic sounds of the last, middle, and first names relating to Sholom Mordechai Rubashkin, Agriprocessors Inc., and Iowa Turkey Products Inc. Hardy Decl. ¶ 12, 18; Second Hardy Decl. ¶ 5. "The FBI also used the plaintiff's date of birth to facilitate the identification of responsive records." Hardy Decl. ¶ 18. The CRS "enables the FBI to maintain all information which it has acquired in the course of fulfilling its mandated law enforcement responsibilities" and includes "administrative, applicant, criminal, personnel, and other files compiled for law enforcement purposes." Id. ¶ 12. The files are indexed according to "main" entries, that is, "the name corresponding with a subject of a file, " and "reference" entries, which reflect "a mere mention or reference to an individual, organization, or other subject matter, contained in a document located in another main' file on a different subject matter." Id. ¶ 13. After Plaintiff filed suit, the FBI conducted a search for any cross-references to Agriprocessors Inc. or Sholom Mordechai Rubashkin, in addition to the main' files search it had already completed. Id. ¶ 19.
Importantly, in the Third Hardy Declaration, the FBI explains that "[b]ased on the nature of the records sought by plaintiff, the CRS is the only FBI system of records where responsive records would reasonably reside absent additional information pointing to records that may reside outside the CRS." Third Hardy Decl. ¶ 6. The FBI explains that the records Plaintiff sought to access pertain to "a specific law enforcement raid and subsequent prosecution, " which the FBI characterizes as "criminal investigative records." Id. Such records "would be indexed in, and retrieved by, a search of the CRS." Id. Most importantly, the FBI explains, " there was no factual basis for the FBI to conclude that responsive records would reside in any databases or systems other than the CRS" and, furthermore, "the records located by the FBI through its automated search of the CRS also provided no indication that other potentially responsive records would exist in any other database or system, including the Electronic Surveillance ("ELSUR") indices." As a result, the FBI concludes, by searching the CRS in this case, it "performed a search for responsive records in the only system where such records would reasonably reside." Id. Finally, the FBI declares that any relevant third party communications "would logically be indexed in the criminal investigative file involved in this case, " thus "the searches of the CRS that the FBI performed would have likely uncovered documents indexed to any third party involved in the records at issue." Id. ¶ 7.
Although the FBI does not offer the strongest justification for the adequacy of its search, the Court finds the FBI has now sufficiently shown that all files reasonably likely to contain responsive materials were searched. See Mobley v. C.I.A., 924 F.Supp.2d 24, 44 (D.D.C. 2013) (finding FBI's justification of search adequate, if "thin, " where the FBI averred that "[g]iven the broad search of the comprehensive CRS system and the ELSUR indices... [the FBI's acting FOIA chief] determined that there is no reasonable basis to conclude that responsive records are reasonably likely to be located by further searches of shared drives."). Plaintiff's arguments to the contrary are unavailing. Plaintiff first contends that the FBI contradicted its own "implicit premise that criminal investigative records are retained only in the CRS" when it stated that "information on subjects whose electronic and/or voice communications have been intercepted as a result of... electronic surveillance conducted by the FBI are separately maintained in the FBI's ELSUR database." Pl.'s Opp'n. at 2. Moreover, Plaintiff argues, the Third Hardy Declaration "does not exclude the possibility that responsive documents are likely to exist in the hard-copy files or on the hard drives of the agents involved in investigating Sholom Rubashkin and/or Agriprocessors, Inc." Id. Plaintiff thus faults the FBI for not searching for records in these locations. Plaintiff, however, misconceives the Third Hardy Declaration. The FBI's declaration does not state that criminal investigative records are retained only in the CRS. It states that the CRS is the only system where responsive records would reasonably reside, absent additional indicators that would point to potentially responsive records in other locations. But the FBI avers that it found no factual basis in Plaintiff's detailed FOIA request that would indicate potentially responsive records residing outside the CRS. Moreover, none of the records located in the search of the CRS in any way indicated that records responsive to Plaintiff's request would potentially be found in another location, and, in particular, in ELSUR. Plaintiff does not contest these assertions in the Third Hardy Declaration and they are entitled to a "presumption of good faith." SafeCard Services, Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991). Thus, contrary to Plaintiff's assertion, the Third Hardy Declaration does exclude the possibility that records potentially responsive to Plaintiff's request are reasonably likely to be found in locations outside the CRS. In any event, Plaintiff offers no reasoned argument for why a search of "hard-copy files, hard drives, or the ELSUR or other databases" would likely locate responsive documents. "Absent some reason to believe that [these locations] are likely to contain responsive materials, [Plaintiff's] arguments are insufficient to require the FBI to conduct further searches. Mobley, 924 F.Supp.2d at 44. See also Valencia-Lucena, 180 F.3d at 325 ("[T]his court has required agencies to make more than perfunctory searches and, indeed, to follow through on obvious leads to discover requested documents.") (citation omitted); Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) ("As the relevance of some records may be more speculative than others, the proper inquiry is whether the requesting party has established a sufficient predicate to justify searching for a particular type of record.").
Plaintiff next argues that the FBI's refusal "to search hard-copy files, hard drives, or the ELSUR or other databases" "merely because information in one database, the CRS, did not point toward those other separate sources" is "simply wrong" because the reasonableness of a search "is judged by the method of the search rather than its results.'" Pl.'s Opp'n. at 3. However, Plaintiff misinterprets the meaning of this well-worn rule. It is true that the adequacy of a FOIA search is not to be judged by its results, but only in so far as a plaintiff may seek to measure a search's adequacy based purely on the number of results obtained or the nature of the results. See Iturralde, 315 F.3d at 315 (finding the failure of an agency "to turn up one specific document in its search does not alone render a search inadequate"); Ancient Coin Collectors Guild, 641 F.3d at 514 (rejecting plaintiff's argument that agency search was inadequate because "it turned up only a few emails"). On the contrary, courts have consistently held that the results of a search are relevant in so far as the content of the responsive records may indicate potentially responsive records in other unsearched locations. For example, in Campbell v. U.S. Dep't of Justice , the D.C. Circuit Court of Appeals held that even though "the FBI started with the reasonable assumption that only a CRS review would be necessary... that assumption became untenable once the FBI discovered information suggesting the existence of documents that it could not locate without expanding the scope of its search." 164 F.3d at 28. In particular, "some of the Bureau's documents suggest[ed]-through administrative annotations and express references in the text-that searching [other records systems] would have identified additional information." Id. at 27. Thus, it was not improper for the FBI in this case to consider the results of its search of the CRS to determine whether it had searched all locations where potentially responsive records were reasonably likely to be located.
Plaintiff's final argument is that the FBI makes no attempt to square its assertion that "any relevant communications between third parties... would logically be indexed in the criminal investigative file" maintained in the CRS with its own admission that the fruits of electronic searches are maintained in the ELSUR database, or with the possibility that responsive records remain in hard-copy files or on hard drives. Pl.'s Opp'n. at 4. This argument is no more than a reiteration of Plaintiff's first argument this time applied to records of third party communications. As the FBI's search of the CRS-the database most likely to contain these third party communications-did not uncover any record indicating that potentially responsive records could be found in other locations and Plaintiff has offered no reasoned argument to the contrary, the Court finds the FBI searched all files reasonably likely to contain records of third party communications.
In short, the FBI conducted a broad search for potentially responsive records in the database most likely to contain such records and had no factual basis-before or after conducting that search-to believe that responsive documents were likely to be found in any other location. All of Plaintiff's challenges to the adequacy of the FBI's search for responsive records are insufficient to defeat the FBI's entitlement to summary judgment on this issue. Accordingly, the Court finds the FBI's search was reasonably calculated to uncover all responsive documents. See Oglesby v. Department of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (holding that in order for a search to be found adequate an agency's affidavits should show "that the search method was reasonably calculated to uncover all relevant documents" and "identify the terms searched or explain how the search was conducted" and "explain in its affidavit that no other record system was likely to produce responsive documents.").
B. FBI's Withholdings
In its August 2013 Memorandum Opinion and Order, the Court granted summary judgment in the FBI's favor with respect to the FBI's withholding of information pursuant to FOIA Exemptions 3, and, in most cases, Exemptions 6 and 7(C), and 7(E). The Court, however, held in abeyance the parties' motions with respect to the FBI's application of Exemptions 6 and 7(C) on twenty-seven specific pages, the FBI's application of Exemption 7(D), and the FBI's application of Exemption 7(E) on five specific pages. The Court requested the FBI supplement its Motion for Summary Judgment in respect to the withholdings held in abeyance. The FBI subsequently filed the Renewed Motion for Summary Judgment presently before the Court. In response to the FBI's Renewed Motion, Plaintiff continues to contest the FBI's invocation of FOIA exemptions 6 and 7(C), 7(D), and 7(E). The Court has reviewed in their entirety the approximately 250 pages on which the FBI invoked exemptions that the Court held in abeyance in its August 2013 Order. The Court reviewed these pages in their redacted, unredacted, and, where applicable, newly revised versions. The Court now addresses the propriety of each exemption in turn.
1. Exemptions 6 and 7(C)
FOIA Exemption 6 provides that an agency may withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Similarly, Exemption 7(C), in relevant part, permits an agency to withhold "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information... could reasonably be expected to constitute an unwarranted invasion of personal privacy." Id. § 552(b)(7)(C). "The courts have construed this provision as permitting exemption if the privacy interest at stake outweighs the public's interest in disclosure." Nation Magazine, Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 893 (D.C. Cir. 1995). As the Plaintiff does not dispute the fact that the records at issue in this case were compiled for law enforcement purposes as required for Exemption 7(C), the Court has "no need to consider Exemption 6 separately because all information that would fall within the scope of Exemption 6 would also be immune from disclosure under Exemption 7(C)." Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011).
In response to the parties' prior cross-motions for summary judgment, the Court reviewed in camera the pages on which the FBI invoked Exemptions 6 and 7(C). The Court found that on twenty-seven specific pages "the FBI redacted information describing actions taken (or not taken) by third parties that does not appear to identify any third party whose identity might be protected by Exemption 6 or Exemption 7(C)." Mem. Op. (Aug. 11, 2013), at 16. Therefore, the Court ordered the FBI to either revise its redactions or provide a supplemental explanation of the use of Exemptions 6 and 7(C) with respect to the pages identified by the Court. Id. The Court found the FBI was otherwise entitled to summary judgment with respect to its use of Exemptions 6 and 7(C). Id. at 17.
In the Third Hardy Declaration accompanying the FBI's Renewed Motion for Summary Judgment, the FBI explains that it reviewed the pages identified by the Court and "determined additional information could be segregated for release, but only to the extent that release of the information would not reveal the identity of the third party." Third Hardy Decl. ¶ 10. As to Rubashkin-934 and Rubashkin-935, however, the FBI maintained all redactions because "the mosaic effect of disclosure of pieces of information could potentially lead to the identification of the third parties." Id. ¶ 10 n. 2. The FBI attached the revised version of the pages at issue to the Third Hardy Declaration. See Id., Ex. A. Plaintiff argues that, despite the revisions, the FBI continues to withhold "extensive information" that could not be used to identify a third party. Pl.'s Opp'n. at 5. Finally, Plaintiff argues that summary judgment should not be granted in favor of the FBI because "the FBI provides no further details or explanation regarding the information it continues to withhold under Exemptions 6 and 7(C)" in contravention of the Court's Order. Id. at 4-5.
The Court finds that the FBI has properly revised its redactions on all except one of the twenty-seven pages identified by the Court in its August 2013 Order. On Rubashkin-793, the Court finds that the FBI has continued to redact information that would not identify a third party protected by Exemption 6 or 7(C). Specifically, the Court finds that the following information in the fourth paragraph on Rubashkin-793 would not identify a third party and thus must be released to Plaintiff: (1) the word immediately preceding the non-redacted phrase "He compared his" in the second line; (2) the six words in the third line immediately following the non-redacted phrase "ads to that of someone"; and (3) the five words in the sixth and seventh lines immediately following the non-redacted phrase "is the only person."
Otherwise, the Court agrees that the FBI has properly revised the pages identified in the Court's August 2013 Order such that only information that could identify a third party protected by Exemptions 6 and 7(C) is redacted. The Court disagrees with Plaintiff's argument that, in violation of the Court's August 2013 Order, "the FBI provides no further details or explanation regarding the information it continues to withhold under Exemptions 6 and 7(C)." The Third Hardy Declaration states that the FBI released information "to the extent that release of the information would not reveal the identity of the third party." Third Hardy Decl. ¶ 10. The logical understanding of this declaration is that the redactions the FBI maintained on the pages at issue withheld information that identifies third parties. The Court's in camera review of these pages confirms this understanding. Moreover, for Rubashkin-934-935, the only two pages where the FBI did not release additional information, the FBI explains that it maintained these redactions because "the mosaic effect of disclosure of pieces of information could potentially lead to the identification of the third parties." Id. ¶ 10 n. 2. Accordingly, the Court finds the FBI has offered sufficient justification for the redactions it has maintained. See Am. Civil Liberties Union, 628 F.3d at 619 ("If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone."). The court finds the FBI's redactions particularly appropriate and necessary to protect the privacy interests of third parties given the small community in which the crime that is the subject of Plaintiff's FOIA request took place. See Concepcion v. F.B.I, 606 F.Supp.2d 14, 42 (D.D.C. 2009) (upholding the redaction of information under Exemption 7(C) "that could possibly identify [the source], including dates and places where he/she has been"); Singh v. F.B.I., 574 F.Supp.2d 32, 49 (D.D.C. 2008) (upholding the redaction of information that "would allow a person familiar with the facts and circumstances of the investigation to identify the individuals"); Alirez v. NLRB, 676 F.2d 423, 428 (10th Cir. 1982) (finding that deletion of names and other identifying data pertaining to small group of co-workers was simply inadequate to protect them from embarrassment or reprisals because requester could still possibly identify individuals).
In addition, the Court notes that on Rubashkin-323, the FBI cited only Exemptions 6 and 7(C) even though in the Hardy Declarations, this page is listed as a page on which information has been withheld pursuant to Exemption 7(D). See Hardy Decl. ¶ 46 n.19; Third Hardy Decl. ¶ 12. Upon the Court's in camera review of this page, the Court confirmed that Rubashkin-323 contains information that would reveal the identity of and information provided by an individual whom the Court finds spoke to the FBI with an implied understanding of confidentiality (as explained in the following section). Accordingly, the Court finds all of the information withheld on Rubashkin-323 to have been properly withheld under Exemption 7(D). Likewise, the Court finds the information listed as withheld pursuant to both Exemptions 7(C) and 7(D) on Rubashkin-934 and Rubashkin-935, was properly withheld pursuant to Exemption 7(D), as explained in the following section. As for the remaining information on Rubashkin-935, which the FBI withheld only under Exemption 6 and 7(C), upon further consideration, the Court agrees with the FBI that the information currently redacted, if released, would lead to the identification of the third parties protected by Exemptions 6 and 7(C). Accordingly, the Court grants summary judgment in the FBI's favor as to all information withheld pursuant to Exemptions 6 and 7(C), except for the information outlined above on Rubashkin-793, which the Court orders the FBI to release to Plaintiff.
2. Exemption 7(D)
In regards to an agency's invocation of Exemption 7(D) to protect the identities of, and information received from, individuals who provided information to the agency and/or local law enforcement during the course of the investigation into the criminal activities, the D.C. Circuit has held that
Where... the records at issue were compiled by criminal law enforcement authorit[ies] in the course of a criminal investigation, ' they are covered by Exemption 7(D) if producing the records could reasonably be expected to disclose the identity of a confidential source' or information furnished' by such a source. 5 U.S.C. § 552(b)(7)(D). The agency invoking Exemption 7(D) bears the burden of proving that it applies, and with respect to the FBI, it is not enough for the agency ...