United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
Plaintiff Ryan Bagwell, who is proceeding pro se, submitted a Freedom of Information Act (“FOIA”) request to the United States Department of Education seeking records pertaining to the Department’s review of compliance by the Pennsylvania State University (“Penn State” or “the University”) with the Clery Act, 20 U.S.C. § 1092(f), which imposes requirements regarding the tracking and disclosure of certain campus crime statistics on institutions participating in the Federal financial aid programs, as well as correspondence between the agency and certain law firms, consulting firms, and related individuals. The Department ultimately produced certain materials, some of which were redacted, and withheld other materials, relying on several FOIA exemptions. Dissatisfied with the Department’s withholding of materials, Plaintiff filed this action. At Plaintiff’s request, Defendant produced several Vaughn declarations in order to justify the materials withheld. Now before the Court are Defendant U.S. Department of Education’s  Motion for Summary Judgment and Plaintiff Ryan Bagwell’s  Cross-Motion for Summary Judgment. The parties dispute the agency’s application of the several FOIA exemptions on which the agency relies. Upon consideration of the pleadings,  the relevant legal authorities, and the record for purposes of this motion, the Court GRANTS Defendant U.S. Department of Education’s  Motion for Summary Judgment and DENIES Plaintiff Ryan Bagwell’s  Cross-Motion for Summary Judgment. The Court GRANTS summary judgment to Defendant in full, and this case is dismissed in its entirety.
A. Statutory Framework
The Court first briefly reviews the Clery Act, which is an essential element in the background of this case. Next the Court provides an overview of the several exemptions from disclosure under FOIA on which Defendant relies in withholding or redacting materials that are responsive to Plaintiff’s FOIA request.
a. The Clery Act
Pursuant to the Clery Act, institutions of higher education participating in the Federal financial aid program are required to collect certain “information with respect to campus crime statistics and campus security policies of that institution.” 20 U.S.C. § 1092(f)(1). In addition, those institutions are required to “prepare, publish, and distribute … an annual security report” regarding those policies and statistics. Id. The Act establishes the minimum requirements for those annual reports, requiring the reporting of “[s]tatistics concerning the occurrence on campus, in or on noncampus buildings or property, and on public property” of certain crimes and other incidents. Id. § 1091(f)(1)(F). In addition to these substantive requirements, the Act also establishes a process for reviewing institutional compliance with the Act’s requirements. See Id. § 1099c-1.
Specifically, the Act requires that the agency “provide to an institution of higher education an adequate opportunity to review and respond to any program review report and relevant materials related to the report before any final program review report is issued.” Id. § 1099c-1(b)(6). Furthermore, the Act requires that the agency “review and take into consideration an institution of higher education’s response in any final program review report or audit determination, and include in the report or determination-
(A) a written statement addressing the institution of higher education’s response;
(B) a written statement of the basis for such report or determination; and
(C) a copy of the institution’s response[.]”
Id. § 1099c-1(b)(7).
Finally, the review process is governed by a confidentiality provision. The Secretary of Education is required to
maintain and preserve at all times the confidentiality of any program review report until the requirements of paragraphs (6) and (7) are met, and until a final program review is issued … except that the Secretary shall promptly disclose any and all program review reports to the institution of higher education under review.
20 U.S.C. § 1099c-1(b)(8). Paragraphs (6) and (7), which govern the timeline of the applicability of the confidentiality provision, including the requirements for the review process described immediately above.
b. FOIA Exemptions
Pursuant to 5 U.S.C. § 552(b)(3), known as FOIA Exemption 3, F O I A does not apply to materials that are “specifically exempted from disclosure by statute … if that statute-
(A) (i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld[.]”
5 U.S.C. § 552(b)(3). “Under [this] exemption, the [agency] need only show that the statute claimed is one of exemption as contemplated by Exemption 3 and that the withheld material falls within the statute.” Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009) (citing Fitzgibbon v. CIA, 911 F.2d 755, 761-62 (D.C. Cir. 1990)).
Pursuant to 5 U.S.C. § 552(b)(6), known as FOIA Exemption 6, FOIA is inapplicable to “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)(3)(6). “The Supreme Court has interpreted the phrase ‘similar files’ to include all information that applies to a particular individual.” Lepelletier v. F.D.I.C., 164 F.3d 37, 46 (D.C. Cir. 1999) (citing United States Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982)). To apply this provision “a court must weigh the ‘privacy interest in non-disclosure against the public interest in the release of the records in order to determine whether, on balance, the disclosure would work a clearly unwarranted invasion of personal privacy.’ ” Id. (quoting National Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989).
“ ‘[T]he only relevant public interest in the FOIA balancing analysis [is] the extent to which disclosure of the information sought would ‘she[d] light on an agency’s performance of its statutory duties' or otherwise let citizens know ‘what their government is up to.’ ” Id. (quoting United States Dep’t of Defense v. FLRA, 510 U.S. 487, 497 (1994)) (alterations in original). “Information that ‘reveals little or nothing about an agency’s own conduct’ does not further the statutory purpose; thus the public has no cognizable interest in the release of such information.” Beck v. Dep’t of Justice, 997 F.2d 1489, 1493 (D.C. Cir. 1993) (citing U.S. Dep’t of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 773 (1989)).
Exemptions 7(A), 7(C), 7(D), and 7(E)
Pursuant to 5 U.S.C. § 552(b)(7), FOIA is inapplicable to
records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;
5 U.S.C. § 552(b)(7) (emphasis added). As relevant here, this provision encompasses Exemption 7(A), relating to interference with enforcement proceedings; Exemption 7(C), relating to the invasion of personal privacy; Exemption 7(D), relating to the disclosure of the identity of confidential sources; and Exemption 7(E), relating to the disclosure of certain information regarding law enforcement investigations or prosecutions.
As a threshold matter, with respect to each of these exemptions, the agency must show that the records “are compiled for law enforcement purposes.” Id. To do so, the agency “need only ‘establish a rational nexus between the investigation and one of the agency’s law enforcement duties and a connection between an individual or incident and a possible security risk or violation of federal law.’ ” Blackwell v. F.B.I., 646 F.3d 37, 40 (D.C. Cir. 2011) (quoting Campbell v. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998)). The Court now provides an overview of each of the subsidiary exemptions under this paragraph on which the agency relies.
Under Exemption 7(A), “records or information compiled for law enforcement purposes” are exempt from disclosure under FOIA to the extent the disclosure of those materials “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). “The principal purpose of Exemption 7(A) is to prevent disclosures which might prematurely reveal the government's cases in court, its evidence and strategies, or the nature, scope, direction, and focus of its investigations, and thereby enable suspects to establish defenses or fraudulent alibis or to destroy or alter evidence.” Maydak v. U.S. Dep’t of Justice, 218 F.3d 760, 762 (D.C. Cir. 2000) (citations omitted). “Another recognized goal of Exemption 7(A) is to prevent litigants from identifying and intimidating or harassing witnesses.” Id. (citation omitted).
First, the government must identify either “ ‘a concrete prospective law enforcement proceeding’ ” or an enforcement proceeding that is “pending or reasonably anticipated.” Boyd v. Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381, 386 (D.C. Cir. 2007) (quoting B e v i s v. Dep’t of State, 801 F.3d 1386, 1389 (D.C. Cir. 1980). Second, “the government must show that disclosure of those documents would, in some particular, discernible way, disrupt, impede, or otherwise harm the enforcement proceeding.” North v. Walsh, 881 F.2d 1088, 1097 (D.C. Cir. 1989); see also Id. (“[A]n agency seeking to shield records or information behind exemption 7(A) must show that disclosure could reasonably be expected perceptibly to interfere with an enforcement proceeding.”) (emphasis in original).
Materials compiled for law enforcement purposes are exempt from disclosure under FOIA, under Exemption 7(C), where such disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). “To determine whether Exemption 7(C) applies, [a court must] ‘balance the privacy interests that would be compromised by disclosure against the public interest in release of the requested information.’ ” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007) (quoting Davis v. U.S. DOJ, 968 F.2d 1276, 1281 (D.C. Cir. 1992)). “Where a legitimate privacy interest is implicated, the requester must ‘(1) show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake, and (2) show the information is likely to advance that interest.’ ” Id. (quoting Boyd, 475 F.3d at 387).
With respect to the privacy interests protected, “the exemption protects the privacy interests of all persons mentioned in law enforcement records, whether they be investigators, suspects, witnesses, or informants.” Id. (citation omitted). By contrast, with respect to the public interest considered, “ ‘the only public interest relevant for purposes of Exemption 7(C) is one that focuses on the citizens’ right to be informed about what their government is up to.’ ” Id. (quoting Davis, 968 F.2d at 1282).
Under Exemption 7(D), materials compiled for law enforcement purposes are exempt from disclosure where, as relevant here, such disclosure “could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis.” 5 U.S.C. § 552(b)(7)(D). The Supreme Court has explained that the word “confidential, ” in this context, “refers to a degree of confidentiality less than total secrecy.” U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 174 (1993). Rather, “[a] source should be deemed confidential if the source furnished information with the understanding that the [agency] would not divulge the communication except to the extent the [agency] thought necessary for law enforcement purposes.” Id.
Finally, under Exemption 7(E), materials compiled for law enforcement purposes are exempt from disclosure where disclosure “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). To qualify for this exemption, it is necessary, first, that the production of the requested materials would disclose either “techniques or procedures for law enforcement investigations or prosecutions” or “guidelines for law enforcement investigations or prosecutions.” Id. Second, materials are only exempt from disclosure under Exemption 7(E) “if such disclosure could reasonably be expected to risk circumvention of the law.” Id.; see Blackwell, 646 F.3d at 42.
The United States Court of Appeals for the District of Columbia Circuit has emphasized the “relatively low bar for the agency to justify withholding” with respect to the latter prong of this exemption. Blackwell, 646 F.3d at 42. “[T]he exemption looks not just for circumvention of the law, but for a risk of circumvention; not just for an actual or certain risk of circumvention, but for an expected risk; not just for an undeniably or universally expected risk, but for a reasonably expected risk; and not just for certitude of a reasonably ...