MEMORANDUM OPINION AND ORDER
DABNEY
L. FRIEDRICH UNITED STATES DISTRICT JUDGE
During
a criminal prosecution, the Federal Bureau of Investigation
(FBI) disclosed that computer repair technicians at a Best
Buy facility in Kentucky had served as confidential
informants. After this revelation, Electronic Frontier
Foundation (EFF) submitted a Freedom of Information Act
(FOIA) request seeking records about the FBI's use of
cooperating computer technicians. The FBI responded to
EFF's FOIA request by refusing to confirm or deny the
existence of most of the requested records, withholding in
full some records, and processing and disclosing redacted
versions of other records. Both parties have now cross-moved
for summary judgment. For the reasons that follow, the Court
will grant in part and deny in part the government's
motion, and it will deny EFF's cross-motion.
I.
BACKGROUND
EFF's
FOIA request was prompted by disclosures the FBI made in
United States v. Rettenmaier, No. 14-cr-0188 (C.D.
Ca. filed Nov. 12, 2014), a child pornography case. In
Rettenmaier, a Best Buy employee at a data recovery
facility in Brooks, Kentucky discovered a suspicious image of
a child while repairing Rettenmaier's computer.
Gov't's Br. at 1-2, Dkt. 13-2; EFF's Br. at 2,
Dkt. 15; Hardy Decl. ¶ 5, Dkt. 13-3. The employee's
supervisor alerted the FBI, which triggered a criminal
investigation that led to Rettenmaier's prosecution.
Gov't's Br. at 2; EFF's Br. at 2.
In
December 2016, the federal judge presiding over the case
issued an order that cited evidence about the FBI's
cooperation with Best Buy employees. Hardy Decl. ¶ 5;
id. Ex. A at 3, Dkt. 13-4. It is undisputed that the
FBI ultimately revealed that it had used eight informants at
Best Buy's Brooks, Kentucky data-recovery facility from
2007 through 2016, and that it revealed the names of four of
those informants. Gov't's Statement of Facts ¶
14, Dkt. 13-1; EFF's Statement of Facts ¶ 2, Dkt.
15-9; EFF's Reply at 5 n.1, Dkt. 21.
On
February 2, 2017, EFF emailed a FOIA request to the FBI that
referenced the order in Rettenmaier and sought
“[a]ll internal memoranda or other documentation
regarding the use of informants . . . at any Best Buy
facility, ” “[a]ll internal memoranda or other
documentation regarding FBI training of Best Buy personnel in
the detection and location of child pornography, or other
material, on computers brought to Best Buy for repair,
” “[a]ll recruiting material from the FBI
directed to Best Buy personnel, ” and “[a]ll
memoranda, guidance, directives, or policy statements
concerning the use of informants . . . at any computer repair
facilities in the United States.” Hardy Decl. Ex. A at
3.[1]
In responding to the request, the FBI construed the term
“informant” to mean “an individual with
whom the FBI has an established relationship, who ha[s] a
specific source identification number used to obscure [his]
identi[t]y in investigatory records, and ha[s] a separate
distinct file containing documentation of their informant
history, which has restricted access within the FBI.”
Id. ¶ 3 n.1.
The FBI
initially invoked FOIA exemption 7(E) as the basis for a
Glomar response[2] that neither confirmed nor denied the
existence of responsive records. Gov't's Statement of
Facts ¶ 5; see also EFF's Statement of
Facts ¶ 1. But it eventually agreed to modify that
response in light of the disclosures made during the
Rettenmaier prosecution. Gov't's Statement
of Facts ¶ 10; see also EFF's Statement of
Facts ¶ 1; Joint Mot. to Vacate Summ. J. Briefing
Schedule ¶ 2, Dkt. 8. Because the government
acknowledged in Rettenmaier that the FBI used eight
confidential informants at the Kentucky Best Buy from 2007 to
2016, it responded to the request for “internal
memoranda or other documentation regarding the use of
[confidential] informants . . . at any Best Buy” by
searching for responsive documents “concerning the
[confidential] informants . . . at the Brooks, Kentucky
facility from 2007 to 2016.” Hardy Decl. ¶ 53
(internal quotation marks omitted). As for the request for
training materials, it explained that it had already
disclosed, in response to an inquiry by the
Rettenmaier court, that it had no records from the
relevant Kentucky field office related to “training
conducted for Best Buy employees in the detection and
location of child pornography on computers brought to Best
Buy for repair, for the time period of 2008 through February
2012.” Id. ¶ 58 (internal quotation marks
omitted). Similarly, the FBI acknowledged that it had
disclosed during the Rettenmaier prosecution
“that it [had] searched [the relevant field
office's] records for any recruiting material directed to
Best Buy personnel between 2008 and February 2012” and
that it had failed to locate any responsive records.
Id. ¶ 60 (alteration adopted and internal
quotation marks omitted). It maintained its Glomar
response for all training and recruiting material not covered
by those two previous searches. Id. ¶¶ 58,
60. Finally, the FBI maintained its Glomar response
to the extent any records responsive to the final part of
EFF's request for “memoranda, guidance, directives,
or policy statements concerning the use of [confidential]
informants, ” id. Ex. A at 3, were not covered
by the first part of its request, id. ¶ 62.
The FBI
invoked exemptions 6, 7(A), 7(C), 7(D), and 7(E) to redact or
withhold the records no longer covered by its Glomar
response. Id. ¶¶ 66, 113. It
“categorically” withheld the “informant
files concerning th[e] eight [confidential informants]
specifically acknowledged in the Rettenmaier
litigation.” Id. ¶ 113. Of the remaining
records, it released 14 pages in full and 151 pages in part.
Id. ¶ 112. It also withheld 78 pages in full
because “all information on these pages was either
fully covered by one or more of the cited FOIA exemptions or
. . . any non-exempt information on these pages was so
intertwined with exempt material that no information could be
reasonably segregated for release.” Id. ¶
112(c). The FBI later supplemented its disclosures after EFF
filed its cross-motion by “removing redactions pursuant
to Exemptions 6 and 7(C) where they had withheld (1) names of
[confidential informants] who had been publicly identified in
the Rettenmaier litigation, and (2) the 2009 work
phone number of one [confidential informant] who had been
publicly identified.” Suppl. Hardy Decl. ¶ 15,
Dkt. 18-2.
To
justify its withholding decisions, the FBI submitted, among
other things, two declarations by David M. Hardy, a section
chief in the FBI's Records Management Division, see
id.; Hardy Decl., a declaration by Special Agent Tracey
L. Riley, see Riley Decl., Dkt. 19-1, and a
Vaughn index, see Vaughn v. Rosen, 484 F.2d
820 (D.C. Cir. 1973), that delineated the redactions made to
each page of the records that were not either categorically
withheld as part of an informant file or covered by the
partial Glomar response, Hardy Decl. Ex. K, Dkt.
13-4.
II.
LEGAL STANDARD
Rule 56
of the Federal Rules of Civil Procedure mandates that
“[t]he court shall grant summary judgment if the movant
shows 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). When a federal agency moves
for summary judgment in a FOIA case, all facts and inferences
must be viewed in the light most favorable to the requester,
and the agency bears the burden of showing that it complied
with FOIA. Chambers v. U.S. Dep't of Interior,
568 F.3d 998, 1003 (D.C. Cir. 2009).
To
prevail under Rule 56, a federal agency “must prove
that each document that falls within the class requested
either has been produced, is unidentifiable, or is wholly
exempt from [FOIA's] inspection requirements.'”
Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982)
(per curiam) (internal quotation marks omitted). “The
system of disclosure established by the FOIA is simple in
theory[:] [a] federal agency must disclose agency records
unless they may be withheld pursuant to one of the nine
enumerated exemptions listed in [5 U.S.C.] §
552(b).” DOJ v. Julian, 486 U.S. 1, 8 (1988).
The agency bears the burden of justifying the application of
any exemptions, “which are exclusive and must be
narrowly construed.” Mobley v. CIA, 806 F.3d
568, 580 (D.C. Cir. 2015).
Federal
courts rely on agency affidavits to determine whether an
agency complied with FOIA. Perry, 684 F.2d.
at 126. Agency affidavits are entitled to a presumption of
good faith, SafeCard Servs. v. SEC, 926 F.2d 1197,
1200 (D.C. Cir. 1991), and a court may grant summary judgment
based on an affidavit if it contains reasonably specific
detail and is not called into question by contradictory
record evidence or evidence of bad faith, Judicial Watch
v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir.
2013). It is well established that “the vast majority
of FOIA cases can be resolved on summary judgment.”
Brayton v. Office of the U.S. Trade Representative,
641 F.3d 521, 527 (D.C. Cir. 2011).
III.
ANALYSIS
EFF
does not dispute that the FBI adequately searched for records
associated with the Rettenmaier disclosures, or that
it appropriately applied several exemptions to the records
located in that search. EFF's Br. at 4-5. Instead, EFF
focuses on a few specific applications of a handful of
exemptions. The Court divides its analysis into three parts:
first, whether the FBI satisfied its burden to justify (a) a
partial Glomar response for documents unrelated to
the disclosures made during the Rettenmaier
prosecution and (b) redactions under exemption 7(E); second,
whether exemption 7(C) protects the name of an individual who
was convicted based on information obtained from the Kentucky
Best Buy; and finally, whether the FBI satisfied its burden
to justify the categorical withholding of the informant files
under exemptions 6, 7(C), 7(D), and 7(E).
A.
Exemption 7(E)
Exemption
7(E) protects “records or information compiled for law
enforcement purposes, but only to the extent that the
production of such law enforcement records or information . .
. would disclose techniques and procedures 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). The exemption
does not ordinarily protect “routine techniques and
procedures already well known to the public.”
Founding Church of Scientology of Washington, D.C. v.
NSA, 610 F.2d 824, 832 n.67 (D.C. Cir. 1979) (internal
quotation marks omitted); see also Judicial
Watch v. U.S. Dep't of Commerce, 337 F.Supp.2d 146,
181 (D.D.C. 2004). It does, however, protect
“confidential details of . . . program[s]” if
only their “general contours [are] publicly
known.” Sussman v. U.S. Marshals Serv., 494
F.3d 1106, 1112 (D.C. Cir. 2007) (citing Blanton v.
DOJ, 64 Fed. App'x 787, 788-89 (D.C. Cir. 2003) (per
curiam)); see also Shapiro v. DOJ, 893 F.3d 796, 801
(D.C. Cir. 2018) (permitting the government to withhold
documents that would disclose the way in which the FBI uses a
particular publicly known database). In this Circuit,
exemption 7(E) applies if the disclosure of information
related to even “commonly known procedures” could
“reduce or nullify their effectiveness.”
Vazquez v. DOJ, 887 F.Supp.2d 114, 116 (D.D.C. 2012)
(internal quotation marks omitted), aff'd, No.
13-5197, 2013 WL 6818207, at *1 (D.C. Cir. Dec. 18, 2013)
(per curiam).
Exemption
7(E) “sets a relatively low bar for the agency to
justify withholding.” Blackwell v. FBI, 646
F.3d 37, 42 (D.C. Cir. 2011). “Rather than requiring a
highly specific burden of showing how the law will be
circumvented, exemption 7(E) only requires that the [agency]
demonstrate logically how the release of the requested
information might create a risk of circumvention of the
law.” Mayer Brown LLP v. IRS, 562 F.3d 1190,
1194 (D.C. Cir. 2009) (alterations adopted and internal
quotation marks omitted). The 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
expected risk, but for the chance of a reasonably expected
risk.” Id. at 1193.
The FBI
invoked exemption 7(E) to justify three withholding
decisions. First, it invoked the exemption to justify a
partial Glomar response and refuse to confirm or
deny the existence of any documents unrelated to the use of
confidential informants “at the Best Buy, Brooks,
Kentucky facility for the period of 2007 to 2016” as
well as the existence of any recruiting or training documents
beyond the disclosures made during the Rettenmaier
prosecution. Hardy Decl. ¶ 29; see also Id.
¶¶ 53, 58, 60, 62. Second, it invoked exemption
7(E) to justify its categorical withholding of the informant
files for the eight informants who were publicly acknowledged
during the Rettenmaier prosecution. Hardy Decl.
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