Freedom of information – Redaction – Bad faith

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Where the government, in response to a plaintiff’s Freedom of Information Act request for seeking information from the FBI that he believed would exonerate him from his conviction for first-degree murder, produced certain heavily redacted documents, a judge did not err in awarding the United States summary judgment on the ground that the plaintiff had received all of the relief to which he was entitled.

“[Plaintiff Shane] Moffat asks that we vacate the district court’s entry of summary judgment and permit him to take any necessary discovery, which would presumably uncover more information responsive to his FOIA requests. To that end, he raises two separate, but related, arguments. The first challenges the government’s invocations of certain privacy- and confidentiality-related exemptions to justify its redaction of the FBI 302 report. Moffat also contends that the government responded to his FOIA requests in bad faith, thereby suggesting that it continues to withhold information to which he is entitled. …

“In invoking 7(C) as to the FBI 302 report, the agency sought to protect the privacy interests of a number of individuals, including third party informants, FBI personnel, and people merely mentioned in the course of the interview. The gravamen of Moffat’s argument is that the privacy interests the government seeks to protect have been substantially reduced or even eradicated by his possession of a less-redacted version of the FBI 302 report. As a result, the diminished privacy interest is now strongly outweighed by the public interest in disclosure.

“This line of reasoning fails for two reasons. First, we have previously stated that prior revelations of exempt information do not destroy an individual’s privacy interest. … The privacy interests the government seeks to uphold remain as strong now as they were before.

“On the other side of the balance, Moffat has not identified a public interest powerful enough to outweigh the substantial privacy interests at stake. …

“Here, Moffat’s only discernible interest in the requested information is to challenge his murder conviction, and he has failed to connect his deeply personal stake in this information to a larger governmental function. While his reply brief states in conclusory fashion that the requested information will ‘reveal a method of federal law enforcement that is not readily apparent,’ this assertion is nothing more than speculation. …

“Here, Moffat argues that his primary evidence of the FBI’s bad faith is the government’s continuing assertion of exemptions relating to the FBI 302 report, despite the previous revelation of some of its contents. …

“As an initial matter, we question whether an agency’s incorrect invocation of FOIA exemptions can ever serve as evidence of bad faith. We are certain, however, that even if the agency claimed an exemption in error, that fact alone does not establish that the government’s response lacked good faith, or that the search was inadequate. The adequacy of a search focuses on the reasonableness of the agency’s response, not whether that response was legally correct in every particular. …

“Regardless of whether the exemptions inquiry and the adequacy inquiry can ever overlap, we have already explained that in this case, Exemptions 7(C) and 7(D) were appropriately applied to the FBI 302 report. Consequently, there is no basis to conclude that the government’s redactions were unjustified or improper here. …”

Moffat v. United States Department of Justice (Lawyers Weekly No. 01-146-13) (23 pages) (Lipez, J.) (1st Circuit) Appealed from a decision by Casper, J., in the U.S. District Court for the District of Massachusetts. David A.F. Lewis for the plaintiff-appellant; Jennifer A. Serafyn, with whom Carmen M. Ortiz was on brief, for the United States (Docket No. 11-2472) (June 14, 2013).

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