UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MID-ATLANTIC INNOCENCE PROJECT,
Plaintiff,
Civil Action No. 23-cv-2112 (BAH)
v.
Judge Beryl A. Howell
FEDERAL BUREAU OF INVESTIGATION,
et al.,
Defendants.
MEMORANDUM OPINION
This case is before the Court for the second time with the parties, again, seeking summary
judgment previously denied in their respective favors on the remaining disputed application of a
single exemption, under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Specifically,
defendants, the U.S. Department of Justice and its component Federal Bureau of Investigation
(“FBI”), seek partial reconsideration of the prior decision in this case rejecting defendants’
withholdings under FOIA Exemption 7(C), see Defs.’ Partial Mot. for Recons. (“Defs.’ Mot.”) at
5, ECF No. 43, which reconsideration, if granted, would result in summary judgment to
defendants. Meanwhile, plaintiff Mid-Atlantic Innocence Project has renewed its motion for
summary judgment for production of records responsive to its FOIA request but withheld under
Exemption 7(C). Pl.’s Renewed Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 44.
As summarized in the prior decision in this case, plaintiff represents Kenneth G. Copeland,
who is currently serving a life sentence on his December 13, 1994, conviction for first-degree
premeditated murder. Mid-Atl. Innocence Project v. Fed. Bureau of Investigation, No. 23-cv-2112
(BAH), 2026 WL 775907, at *1-2 (D.D.C. Mar. 19, 2026). In connection with that representation,
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plaintiff initiated this lawsuit after receiving no response to a FOIA request for FBI records
pertaining to Copeland and related to the homicide for which he stands convicted. See id. at *3.
After production was completed in February 2024, a dispute remained over the extent of
withholdings in defendants’ productions, and protracted summary judgment briefing began, and
became ripe for resolution two years later, in February 2026. See id. at *3. In March 2026,
plaintiff’s cross-motion for summary judgment was denied, and defendants’ motion for summary
judgment was denied in part and granted to approve the withholding of “any document or portion
of a document withheld pursuant to Exemption 7(D) . . ., regardless of what other exemptions were
asserted.” Id. at *12. Defendants were ordered to clarify the extent to which the exemptions listed
in the Vaughn index overlapped, and the parties were ordered to conduct further briefing to
facilitate the “expeditious resolution of the remaining issues in this matter.” Id. at *1.
In compliance with that order, defendants have since clarified that withholdings made
pursuant to Exemption 7(D), the only exemption for which summary judgment has already been
granted to defendants, overlapped completely with withholdings made pursuant to disputed
Exemptions 3 and 7(F), and overlapped partially with withholdings made pursuant to Exemptions
6 and 7(C), which are analyzed together. Defs.’ Mot., Att. 1, Decl. of Acting Section Chief of the
Rec./Info. Dissemination Section, Info. Mgmt. Div., FBI, Isabel Marie Lara (“Lara Decl.”) ¶ 5,
ECF No. 43-1. 1 As any determination about the propriety of the application of Exemptions 3 and
7(F) would have no effect on the withholdings, the parties have forgone arguments about those
exemptions. See Pl.’s Mot., Pl.’s Mem. in Opp’n to Defs.’ Mot. for Recons. & in Supp. of Its
Renewed Mot. for Summ. J. (“Pl.’s Mem.”) at 3, ECF No. 44-1; Defs.’ Mot. at 6. Instead,
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“When, as here, the request is for records compiled for law enforcement purposes, the information protected by Exemption 6 is a subset of that protected by Exemption 7(C), so [courts] need only analyze the latter.” Mid-Atl. Innocence Project, 2026 WL 775907, at *7 n.8 (alteration in original) (quoting Brown v. Fed. Bureau of Investigation, 143 F.4th 481, 486 n.3 (D.C. Cir. 2025)). “Thus, Exemption 6 need not be separately considered.” Id.
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defendants seek reconsideration of the previous decision’s finding that “[t]he government has thus
failed to carry its burden to show that Exemption 7(C) justifies redactions of the identities and
identifying information for individuals who testified at Copeland’s trial as well as those who were
identified at trial through government-elicited acknowledgements,” Mid-Atl. Innocence Project,
2026 WL 775907, at *9, arguing that this conclusion is wrong because “Kowal [v. United States
Department of Justice, 107 F.4th 1018 (D.C. Cir. 2024)], controls the outcome in this matter,”
Defs.’ Mot. at 5. Plaintiff, for its part, seeks summary judgment to deny withholdings under
Exemption 7(C), contending that “[t]he Court’s decision is correct and entirely consistent with
Kowal, which was decided under materially different facts and legal principles.” Pl.’s Mem. at 4.
In short, the singular live question presented by the parties in this second round of briefing
is whether Kowal compels summary judgment for defendants on Exemption 7(C). For the reasons
explained below, Kowal does not go so far. Plaintiff’s motion for summary judgment is thus
granted as to the inapplicability of Exemption 7(C) to withhold responsive records, and
defendants’ motion for reconsideration, intended for a resultant summary judgment in their favor
as to invocation of this exemption, is denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
The factual background and procedural history relevant to the pending motions are
recounted in the previous decision issued in this matter, see Mid-Atl. Innocence Project, 2026 WL
775907, at *1-3, and thus only briefly summarized here.
Kenneth G. Copeland was convicted, in 1994, by a jury in Superior Court for the firstdegree murder of Wayne Edelin and possession of a firearm during a crime of violence, after a
dozen witnesses for the prosecution and one witness for the defense testified at his trial. Id. at *1.
He “was sentenced to an aggregate of thirty-five-years to life imprisonment.” Id. at *2. Both of
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his convictions were affirmed on direct appeal, and Copeland’s numerous pro se petitions for postconviction relief have all been denied. Id. & n.2.
In December 2022, plaintiff submitted, on Copeland’s behalf, a FOIA request to the FBI
for “all records pertaining to Kenneth G. Copeland, in the custody and control of the Federal
Bureau of Investigation related to the homicide of Wayne Edelin which took place on or around
November 28, 1992 near the Barry Farms neighborhood in Southeast DC.” Id. at *2 (internal
quotation marks omitted) (quoting Compl. ¶ 7, ECF No. 1). The FBI responded that the “unusual
circumstances” presented by the case “will delay its ‘ability to make a determination’ on the
request within the statutory deadline.” Id. (quoting Compl. ¶ 11). At the time of the filing of this
lawsuit, on July 20, 2023, the FBI had neither issued a determination nor produced any responsive
records, id. at *3, but by the time of dispositive briefing, defendants had processed 1,223 pages of
responsive records, 173 pages of which were released in full, 609 pages released in part, and 441
pages withheld in full. See id. (citation omitted). In dispositive briefing, plaintiff disputed
withholdings in only 267 pages of these processed documents, 261 of which were released in part
and 6 of which were withheld in full. See id. (citation omitted).
Defendants relied on Privacy Act Exemption (j)(2) as well as FOIA Exemptions 3, 6, 7(C),
7(D), and 7(F) to justify the withholding of information from the disputed 267 pages, id. at *4, and
plaintiff challenged withholdings under each exemption, id. at *4-13. As to Privacy Act
Exemption (j)(2), the previous decision concluded that “[t]he bottom line is that the viability of
the withholdings under the Privacy Act exemption turns on whether defendants’ reliance on” the
FOIA exemptions is justified. Id. at *5. 2 Next, plaintiff persuaded that “FOIA Exemption 3 . . .
2
The relevant FOIA exemptions are summarized briefly. Exemption 3 protects from disclosure matters “specifically exempted from disclosure by statute . . . .” 5 U.S.C. § 552(b)(3). Exemption 6 permits withholding of “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), while Exemption 7(C) further permits the withholding of “records or
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is unavailable to defendants as a basis for withholding information or documents.” Id. at *7.
Similarly, defendants failed “to show that Exemption 7(C) justifies redactions of the identities and
identifying information for individuals who testified at Copeland’s trial as well as those who were
identified at trial through government-elicited acknowledgements including by the Assistant U.S.
Attorney who prosecuted the case, Special Agent Regini, and other government witnesses under
examination.” Id. at *9. Summary judgment was awarded “to defendants and denied to plaintiff
as to Exemption 7(D),” and was “denied to both plaintiff and defendants as to whether Exemption
7(F) was properly asserted.” Id. at *12-13.
Further, observing that “[t]he Vaughn index submitted by defendants lists the exemptions
applied to each page withheld in part or in full, but does not clarify whether those exemptions
apply to the same or different redactions on the page,” “the Court [wa]s unable to specify which
Bates-numbered documents may be withheld, due to approval of an exemption, or released, due to
disapproval of an exemption.” Id. at *4. Thus, though defendants’ motion for summary judgment
was partially granted and partially denied, the parties were instructed that “any document or
portion of a document withheld pursuant to Exemption 7(D) may continue to be withheld,
regardless of what other exemptions were asserted,” id. at *12, but further briefing was ordered
“for the expeditious resolution of the remaining issues in this matter,” id. at *1.
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.” 5 U.S.C. § 552(b)(7)(C). Exemption 7(D) allows withholding of “records or information compiled for law enforcement purposes” that “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.” 5 U.S.C. § 552(b)(7)(D). Finally, Exemption 7(F) permits withholding of “records or information compiled for law enforcement purposes” that “could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F).
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On June 3, 2026, in compliance with this order, defendants produced a declaration “to
clarify whether certain exemptions overlapped.” Lara Decl. ¶ 4. The declarant attested that
withholdings made under Exemption 7(D) overlapped completely with withholdings made
pursuant to Exemptions 3 and 7(F), but overlapped only partially with withholdings made pursuant
to Exemptions 6 and 7(C). Id. ¶¶ 5-6 (“In every instance in the contested pages where Exemption
3 was applied, Exemption 7(D) was also applied. In every instance in the contested pages where
Exemption 7(F) was applied, Exemption 7(D) was also applied. Exemption 7(C) had several
instances where it was both used in conjunction with 7(D) and without to withhold names and
identifying information, based on the context of the information on the page.”). Therefore, ruling
on Exemptions 3 and 7(F) would have no practical effect on the withholdings or redactions, so the
parties agree that these challenges to the withholdings are moot. See Defs.’ Mot. at 6 (“Because
the Court found that the FBI properly withheld information under Exemption 7(D), no disclosure
is required for the withholdings under Exemption 3.” (citing Mid-Atl. Innocence Project, 2026 WL
775907, at *12)); id. (“Because the Court found that the FBI properly withheld information under
Exemption 7(D), the Court need not reach the issue of whether the FBI properly applied Exemption
7(F).” (citing Mid-Atl. Innocence Project, 2026 WL 775907, at *12)); Pl.’s Mem. at 3 (“Thus, on
the present record, the applicability of Exemption 7(F) is moot in light of the Court’s holding on
Exemption 7(D) . . . .”). Accordingly, only Exemption 7(C) is now contested, with a resultant
narrowing of disputed withheld records from 267 pages at issue in the previous decision to 115
pages currently withheld only under contested Exemption 7(C), see Lara Decl. ¶ 6.
Both defendants’ motion for partial reconsideration and plaintiff’s motion for summary
judgment focus on the bearing of Kowal to the FBI’s application of Exemption 7(C) to records
responsive to the FOIA request at issue here. See Defs.’ Mot. at 5 (contending “that Kowal [v.
6
United States Department of Justice, 107 F.4th 1018 (D.C. Cir. 2024)], controls the outcome in
this matter”); Pl.’s Mem. These motions are now ripe for review. See Defs.’ Reply in Further
Supp. of Partial Mot. for Recons. & Opp’n to Pl.’s Renewed Mot. for Summ. J. (“Defs.’ 2d
Reply”), ECF No. 46.
II. APPLICABLE LEGAL STANDARDS
Set out below are the separate legal standards applicable to the parties’ motions for
summary judgment and defendants’ motion for reconsideration.
A. Motion for Summary Judgment
A movant is entitled to 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); see also Soundboard Ass’n v. FTC, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (“A party
is entitled to summary judgment only if there is no genuine issue of material fact and judgment in
the movant’s favor is proper as a matter of law.”). “‘The mere existence of some alleged factual
dispute between the parties’ will not defeat summary judgment; ‘the requirement is that there be
no genuine issue of material fact.’” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)
(emphasis omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). Most
FOIA cases “can be resolved on summary judgment.” Brayton v. Off. of U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011); see also Citizens for Resp. & Ethics in Wash.
v. Dep’t of Just., 58 F.4th 1255, 1272 (D.C. Cir. 2023) (Sentelle, J., concurring in the judgment)
(“[T]he vast majority of FOIA cases can be resolved on summary judgment.” (citation omitted)).
“Agencies may withhold from disclosure information that falls within one of the Act’s nine
enumerated exceptions,” but “[t]hose ‘limited exceptions do not obscure the basic policy that
disclosure, not secrecy, is the dominant objective of the Act.’” Hum. Rts. Def. Ctr. v. U.S. Park
Police, 126 F.4th 708, 712-13 (D.C. Cir. 2025) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352,
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361 (1976)). “This ‘strong presumption in favor of disclosure places the burden on the agency to
justify the withholding of any requested documents.’” Id. at 713 (quoting U.S. Dep’t of State v.
Ray, 502 U.S. 164, 173 (1991)). “The agencies may carry that burden by submitting declarations
attesting to the basis for the agency’s decision.” Am. First Legal Found. v. U.S. Dep’t of Agric.,
126 F.4th 691, 694 (D.C. Cir. 2025) (internal quotation marks omitted) (quoting Citizens for Resp.
& Ethics, 58 F.4th at 1262). “In FOIA cases, ‘summary judgment may be granted on the basis of
agency affidavits 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.’” Aguiar v. Drug Enf’t Admin., 865 F.3d 730, 734-35 (D.C. Cir.
2017) (quoting Jud. Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013)).
B. Motion for Reconsideration
Federal Rule of Civil Procedure 54(b) provides that “any order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all
the parties does not end the action as to any of the claims or parties and may be revised at any time
before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”
FED. R. CIV. P. 54(b). In contrast to a motion for reconsideration pursuant to Rule 59(e), which
governs post-judgment motions for reconsideration, “Rule 54(b)’s approach to the interlocutory
presentation of new arguments as the case evolves can be more flexible, reflecting the ‘inherent
power of the rendering district court to afford such relief from interlocutory judgments as justice
requires.’” Cobell v. Jewell, 802 F.3d 12, 25 (D.C. Cir. 2015) (quoting Greene v. Union Mut. Life
Ins. Co. of Am., 764 F.2d 19, 22 (1st Cir. 1985) (Breyer, J.)); see also Capitol Sprinkler Inspection,
Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011) (“Rule 54(b) . . . not only authorizes
the court to enter a partial final judgment but also recognizes its inherent power to reconsider an
interlocutory order ‘as justice requires.’” (quoting Greene, 764 F.2d at 22)).
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III. DISCUSSION
The singular remaining contested issue is whether Kowal compels summary judgment for
defendants on the FBI’s withholding of information, pursuant to FOIA Exemption 7(C). As noted,
see supra n.2, this exemption permits the withholding of “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.” 5 U.S.C. § 552(b)(7)(C). As explained in the previous decision, the FBI “failed to carry
its burden to show that Exemption 7(C) justifies redactions of the identities and identifying
information for individuals who testified at Copeland’s trial as well as those who were identified
at trial through government-elicited acknowledgements including by the Assistant U.S. Attorney
who prosecuted the case, Special Agent Regini, and other government witnesses under
examination.” Mid-Atl. Innocence Project, 2026 WL 775907, at *9.
Defendants seek reconsideration of this “ruling regarding Exemption 7(C).” Defs.’ Mot.
at 2. To determine whether Exemption 7(C) applies because disclosure would amount to an
unwarranted personal privacy invasion, courts “weigh the public interest in the release of
information against the privacy interest in nondisclosure.” People for the Ethical Treatment of
Animals v. Nat’l Insts. of Health, 745 F.3d 535, 541 (D.C. Cir. 2014) (quoting Schrecker v. U.S.
Dep’t of Just., 349 F.3d 657, 661 (D.C. Cir. 2003)). In addition, “[u]nder the FOIA Improvement
Act of 2016, [Pub. L. No. 114-185, 130 Stat. 538 (2016),] the government may not withhold even
those privileged materials unless it also ‘reasonably foresees that disclosure would harm an interest
protected by’ the FOIA exemption.” Reps. Comm. for Freedom of the Press v. Fed. Bureau of
Investigation, 3 F.4th 350, 369 (D.C. Cir. 2021) (quoting 5 U.S.C. § 552(a)(8)(A)(i)(I)).
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As the D.C. Circuit has explained, and this Court previously recounted, see Mid-Atl.
Innocence Project, 2026 WL 775907, at *8, “Congress adopted the FOIA Improvement Act in part
out of ‘concerns that some agencies [were] overusing FOIA exemptions that allow, but do not
require, information to be withheld from disclosure,’” Reps. Comm., 3 F.4th at 369 (alteration in
original) (quoting S. Rep. No. 114-4, at 2 (2015), reprinted in 2016 U.S.C.C.A.N. 321, 322). The
Improvement Act thus “requires a ‘particularized inquiry into what sort of foreseeable harm would
result from the material’s release” and “compels an agency to release requested materials unless it
can ‘articulate both the nature of the harm [from release] and the link between the specified harm
and specific information contained in the material withheld.’” Hum. Rts. Def. Ctr., 126 F.4th at
717 (quoting Reps. Comm., 3 F.4th at 369 & n.2). In effect, Congress added this requirement so
that “[a]gencies cannot rely on ‘mere “speculative or abstract fears,” or fear of embarrassment’ to
withhold information,” nor may they “meet [their] burden with ‘generalized assertions.’” Reps.
Comm., 3 F.4th at 369 (quoting S. Rep. No. 114-4, at 8, 2016 U.S.C.C.A.N. at 324, and Machado
Amadis v. U.S. Dep’t of State, 971 F.3d 364, 371 (D.C. Cir. 2020)). This “foreseeable harm
requirement ‘impose[s] an independent and meaningful burden on agencies.’” Reps. Comm., 3
F.4th at 369 (alteration in original) (quoting Ctr. for Investigative Reporting v. U.S. Customs &
Border Prot., 436 F. Supp. 3d 90, 106 (D.D.C. 2019) (BAH)).
Previously, plaintiff challenged defendants’ redactions to the identities and identifying
information of individuals who testified at trial or those “disclosed by the Assistant U.S. Attorney
who prosecuted the case, Special Agent Regini, or other government witnesses on direct
examination.” Id. at *8. As already observed in this case, “defendants have an uphill battle to
defend redactions of this already public information,” and “[t]his hill proves too steep for the
justifications proffered under Exemption 7(C).” Id. Plaintiff demonstrated that “the public [] has
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a legitimate and strong interest in ensuring that a lengthy period of incarceration is imposed
correctly, not only for a myriad of legal, moral and humane reasons, but also due to the concomitant
burdens on the public fisc and resources.” Id. Defendants’ arguments concerning privacy interests
was determined to be “entirely speculative, given [that] no evidence is proffered as to why such
harassment or retaliation would occur now when the events of the trial occurred more than thirty
years ago” and that “defendants acknowledge[d] that they lack awareness of whether these
individuals are even still living.” Id. at *9. Thus, “[b]alancing the public interest against
defendants’ proffered privacy interests tilt[ed] in favor of releasing the records.” Id.
As to the foreseeable harm analysis, defendants argued “that ‘given the age of Mr.
Copeland’s criminal case, an official acknowledgment of these third party’s association with an
FBI investigation is likely to lift that association out of practical obscurity and into the forefront
of public awareness, further aggravating the stigma associated with such a disclosure.’” Id.
(quoting Defs.’ Reply in Supp. of Mot. for Summ. J. & Opp’n to Pl.’s Cross-Mot. for Summ. J. at
5 (“Defs.’ 1st Reply”), ECF No. 34). This argument was found to be “upside-down: the fact that
these individuals were publicly named in a trial more than three decades ago makes any further
reputational risk than that which they may have experienced at the time, highly speculative[, and]
[s]uch speculative harm is foreclosed by Congress’s creation of the foreseeable harm requirement.”
Id. The previous decision concluded that “[t]he government has thus failed to carry its burden to
show that Exemption 7(C) justifies redactions of the identities and identifying information for
individuals who testified at Copeland’s trial as well as those who were identified at trial through
government-elicited acknowledgements.” Id.
Defendants now call attention to “the D.C. Circuit’s opinion in Kowal v. United States
Department of Justice, 107 F.4th 1018 (D.C. Cir. 2024),” Defs.’ Mot. at 4, which was quoted once
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by defendants in the first round of dispositive briefing for the statement that “[w]here there is no
identifiable public interest, the privacy interest protected by Exemption 7(C) prevails.” Defs.’
Mot. for Summ. J. at 11, ECF No. 24 (quoting Kowal, 107 F.4th at 1031).3 Defendants urge that
the failure to address defendants’ single sentence proposition with citation to, without discussion
of, Kowal, shows error in the Court’s preceding analysis. See Defs.’ Mot. at 4. Yet defendants’
previous briefing did not explain how Kowal could overcome defendants’ inability to establish
foreseeable harm. See generally id. Nor does defendants’ current briefing explain how a panel of
the D.C. Circuit in Kowal may eliminate consideration of the statutorily imposed foreseeable harm
requirement. See Defs.’ Mot. at 5; Defs.’ 2d Reply at 3 (“The foreseeable harm requirement was
codified well before Kowal, and yet there were no concerns with the FBI’s assertions of harm.”).
No error occurred because defendants overread Kowal.
In Kowal, a paralegal in a Federal Public Defender (“FPD”) office filed a FOIA request on
behalf of the FPD’s client, Daniel Troya, who “was sentenced to death for the ‘gangland-style’
murder of a family of four on a highway roadside.” 107 F.4th at 1026; see also United States v.
Troya, 733 F.3d 1125, 1129-30, 1136 (11th Cir. 2013) (describing Troya as “sentenced to death
for the murder of three-year-old Luis Damian Escobedo and four-year-old Luis Julian Escobedo”
and “to life imprisonment for the murder of the children’s parents, Jose Luis Escobedo and his
wife Yessica Escobedo,” in the early hours of October 13, 2006). The murders for which Troya
was convicted were “committed ‘to protect a large-scale drug trafficking ring involving drugs,
guns and extensive violence.’” Kowal, 107 F.4th at 1026 (quoting Troya, 733 F.3d at 1130). The
FOIA requests at issue in Kowal sought from the FBI, ATF, and Drug Enforcement Administration
(“DEA”) “all documents, files, records, etc. pertaining to any investigation, arrest, indictment,
3
Defendants also cited Kowal to support the uncontested proposition that “Courts have repeatedly upheld as adequate the FBI’s search of the Central Records System.” Id. at 4 (citing, inter alia, Kowal, 107 F.4th at 1026).
12
conviction, sentencing, incarceration, and/or parole of . . . Daniel Troya,” Kowal v. U.S. Dep’t of
Just., 490 F. Supp. 3d 53, 59 (D.D.C. 2020) (TJK) (ellipsis in original), and “also requested the
same documents for five of Troya’s co-defendants,” Kowal v. U.S. Dep’t of Just., No. 18-cv-938
(TJK), 2021 WL 3363445, at *1 (D.D.C. Aug. 3, 2021). “The DEA’s search identified 418 pages”
of responsive materials and “invoked FOIA Exemptions 6, 7(C), 7(D), 7(E), and 7(F) to withhold
some documents in whole or in part.” Id.
When considering the “privacy interests implicated by the withheld material” under
Exemptions 6 and 7(C), the district court credited the declaration of a DEA agent, id. at *4 (citing
Defs.’ Mot. for Summ. J., Ex. 1, Decl. of DEA’s FOIA/Privacy Act Unit’s Unit Chief, Angela D.
Hertel (“Hertel Decl.”) ¶ 20, Kowal v. U.S. Dep’t of Just., No. 18-cv-938 (TJK), ECF No. 36-1),
who attested that “[t]he investigative records . . . processed in response to Plaintiff’s FOIA request
contain names and other identifying information that would reveal the identity of, and disclose
personal information about, individuals who were involved or associated with Mr. Troya, or with
a law enforcement investigation, and could subject them to possible harassment, or focus
derogatory inferences and suspicion upon them. The individuals are protected from the disclosure
of their identities and information about them,” Hertel Decl. ¶ 20. The declaration elaborated on
the potential harm when discussing Exemption 7(F), attesting that “[i]t has been the experience of
DEA that violence is inherent in the drug trade, and the release of the identities of law enforcement
officers has resulted in several instances of physical attacks, threats, harassment, murder, and
attempted murder. Therefore, the names of the Special Agents as well as other individuals
involved in criminal investigations are withheld, since it is reasonable to conclude that identifying
them could subject them to harassment, reprisal or physical retaliation for providing information
and being connected with the investigation in any way.” Id. ¶ 43. Consequently, the district court
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found weighty privacy interests, see Kowal, 2021 WL 3363445, at *4, and the D.C. Circuit
affirmed, finding that the withholdings were necessary “to prevent ‘possible harassment’ or
‘derogatory inferences and suspicion’ against the personnel and witnesses for their involvement in
a gang murder investigation” and that “[t]hese explanations are sufficient to demonstrate that the
disclosure of the withheld information would threaten privacy interests,” Kowal, 107 F.4th at 1031.
In its ruling, the D.C. Circuit did not mention foreseeable harm at all, which is unsurprising
because appellant never challenged any foreseeable harm analysis conducted by the district court
as to application of Exemptions 6 and 7(C), and only briefly mentioned foreseeable harm with
respect to Exemption 7(E). See Final Br. of Appellant at 46-47, Kowal v. U.S. Dep’t of Just., 107
F.4th 1018 (D.C. Cir. 2024) (No. 22-5287), 2023 WL 7460796, at *46-47 (complaining, as part of
a challenge to the grant of summary judgment for the FBI on Exemption 7(E), that “[t]he district
court failed to make specific findings about the foreseeable harm attendant to disclosure, and
neither took the age of the records, nor the plethora of information already in the public domain,
into account in its ruling”); Final Reply Br. of Appellant at 10-15, Kowal v. U.S. Dep’t of Just.,
107 F.4th 1018 (D.C. Cir. 2024) (No. 22-5287), 2023 WL 7460797, at *10-15 (containing no
mention of foreseeable harm at all); see also Pl.’s Mem. at 7 (“The court said nothing about FOIA’s
foreseeable harm requirement or its interaction with Exemption 7(C), presumably because the
requester did not raise it.”). The D.C. Circuit’s elision of any discussion about foreseeable harm
does not mean, as defendants contend, that assertions of “‘possible harassment’ or ‘derogatory
inferences and suspicion’ against the identified individuals,” Defs.’ 2d Reply at 3 (quoting Kowal,
107 F.4th at 1031), are sufficient to satisfy the “meaningful burden” created by the foreseeable
harm standard, Reps. Comm., 3 F.4th at 369, especially where, as here, the withholdings concern
individuals who either testified at trial or were identified through government-elicited
14
acknowledgements. Thus, after plaintiff argued that the foreseeable harm requirement is “an issue
on which Kowal offers no guidance because the issue was not presented,” Pl.’s Mem. at 8,
defendants provided no response other than to say that “[t]he foreseeable harm requirement was
codified well before Kowal, and yet there were no concerns with the FBI’s assertions of harm,”
Defs.’ 2d Reply at 3. To put this bluntly, defendants’ position that Kowal alters a standard that the
parties in that case never pressed and the D.C. Circuit neither expressly considered or held is
simply unsupportable and unpersuasive.
Indeed, contrary to the expansive reading of Kowal urged by defendants here, the D.C.
Circuit itself does not understand Kowal to eliminate the foreseeable harm statutory requirement,
in circumstances where Exemption 7(C) applies. In Brown v. Federal Bureau of Investigation,
143 F.4th 481 (D.C. Cir. 2025), which was decided after, and relied extensively on, Kowal—and
is joined by Kowal’s author—the D.C. Circuit, in affirming the lower court’s finding “that the FBI
properly invoked Exemptions 6 and 7(C),” analyzed the FBI’s explanation of “foreseeable harms
three separate groups could experience from disclosure” to determine that “the FBI identified
reasonably foreseeable harms linked to the disclosure of the personally identifiable information
the FBI withheld,” id. at 487. Moreover, when an amicus noted “that the district court failed to
address foreseeable harm,” the D.C. Circuit declined the amicus’s invitation to “remand to the
district court to evaluate that requirement in the first instance,” not because foreseeable harm is no
longer necessary but instead because the de novo review standard permitted the D.C. Circuit to
“affirm a district court judgment on any basis supported by the record.” Id. at 488 n.5 (quoting
Smith v. Lanier, 726 F.3d 166, 169 (D.C. Cir. 2013)). Thus, foreseeable harm from a disclosure
otherwise subject to a FOIA exemption must still be established after Kowal. To the extent
defendants urge otherwise, they are incorrect as a matter of law.
15
Moreover, application of the foreseeable harm analysis looks much different in the instant
case than in Kowal. As a threshold matter, the FOIA request at issue in Kowal was broad, seeking
“all documents, files, records, etc. pertaining to any investigation, arrest, indictment, conviction,
sentencing, incarceration, and/or parole of . . . Daniel Troya,” Kowal, 490 F. Supp. 3d at 59
(ellipsis in original), compared to the more limited FOIA request here focused on records of those
witnesses who testified publicly at trial or were publicly “outed” at trial by a testifying government
agent. In other words, the instant dispute does not concern the identities and identifying
information of everyone involved in the case whose identities might otherwise be unknown, as in
Kowal, but rather only “the identities and identifying information for individuals who testified at
Copeland’s trial as well as those who were identified at trial through government-elicited
acknowledgements,” Mid-Atl. Innocence Project, 2026 WL 775907, at *9. In short, the disclosure
at issue here pertains to individuals whose involvement in the criminal investigation and trial of
Copeland has already been made public, at a public jury trial no less.
Further, the underlying criminal conduct in Kowal was on a far different and broader scale
than that underlying Copeland’s conviction. Troya was involved, fifteen years earlier, in a large
conspiracy, had multiple co-defendants, and was a member of “a large-scale drug trafficking ring
involving drugs, guns and extensive violence.’” Kowal, 107 F.4th at 1026. In contrast, Copeland
was charged, alone, with no co-defendants or allegation of a larger conspiracy, of committing a
single murder more than thirty years ago. Though defendants present an allegation of “the alleged
ties Mr. Copeland has to drug-gang activity,” Defs.’ 1st Reply, Ex. 2, Third Hammer Decl. of
Acting Section Chief of the Rec./Info. Dissemination Section, Info. Mgmt. Div., Fed. Bureau of
Investigations, Shannon R. Hammer ¶ 18, ECF No. 34-2, nowhere in the record before this Court
is that allegation connected to the murder for which Copeland was convicted.
16
Furthermore, the declaration on which defendants rely in this case, see Defs.’ Mot. at 4
(citing Defs.’ Mot. for Summ. J., Decl. of Acting Section Chief of the Rec./Info. Dissemination
Section, Info. Mgmt. Div., Fed. Bureau of Investigation, Shannon R. Hammer (“FBI’s Hammer
Decl.”), ECF No. 24-1), contains merely speculative notions of potential harm. For instance,
regarding the application of Exemption 7 (C) to withhold the identities and identifying information
of FBI special agents, the declaration states that “Plaintiff was sentenced to thirty-five years to life
for the murder of Wayne Edelin” and that “[t]his individual may seek revenge on SAs [Special
Agents], and other federal employees involved in a particular investigation.” Id. ¶ 39. The
declaration never explains, and the briefing does not make clear, the “incremental privacy harm”
that would arise with disclosure of the names of special agents who were witnesses at the trial or
were identified at trial through government-elicited acknowledgement when Copeland was sitting
at trial and therefore knows the identities of these special agents or, if he forgot the witnesses’
names over the intervening three decades, could readily obtain a trial transcript “from the D.C.
Court of Appeals in less than one month, free of charge.” Mid-Atl. Innocence Project, 2026 WL
775907, at *8 (quoting Pl.’s Mot. for Summ. J., Pl.’s Mem. in Supp. at 13-14, ECF No. 27-1).
The declaration is no more persuasive in its description of foreseeable harm to third parties.
Beginning with the attestation that “[d]isclosure of the identities of individuals who willingly
provide information to the FBI could subject these individuals to harassment or embarrassment,
undue public attention, and/or unwanted inquiries for information related to their assistance,” the
declarant expresses that “the FBI does not want to further disrupt the lives of those individuals and
bring undo attention” because “[t]hey could also be targeted for retaliation by investigative
subjects or by those who simply disparage cooperation with law enforcement.” FBI’s Hammer
Decl. ¶ 41. The attestation continues that “[c]onsidering the subjects well-known propensity of
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violence in the community, even today, the disclosure of the identities or identifying information
of any third party’s cooperation with law enforcement could also lead to legal or economic
detriment, negative professional and social repercussions, possible physical harm, or even death.”
Id. The flaws in this justification for finding foreseeable harm are multifaceted. First, the
declaration never indicates that other individuals were either involved with or investigated for the
murder of Wayne Edelin, so the declaration is unclear, and thus unpersuasive, as to whether other
individuals were targets of the investigation or whether the declaration is merely addressing
possible, speculative harms. Second, the concerns expressed about the disclosure of third parties’
cooperation with law enforcement is misplaced since the FOIA request at issue is narrowly focused
on individuals already publicly disclosed as either testifying witnesses or by a testifying
government agent witness. Third, the concern that disclosure could somehow “lead to legal or
economic detriment,” id., seems implausible and, without more explanation, suggests that the
stated harms merely represent possible detrimental outcomes that could potentially arise from
cooperating with law enforcement in general. The use of “speculative or abstract fears” and
“generalized assertions” are insufficient to meet the foreseeable harm requirement. Reps. Comm.,
3 F.4th at 369.
Indeed, the declaration is so imprecise as to foreseeable harm that “defendants
acknowledge[d] that they lack awareness of whether these individuals are even still living, MidAtl. Innocence Project, 2026 WL 775907, at *9 (citing Defs.’ 1st Reply at 7), a consideration of
heightened importance where the underlying events occurred more than thirty years ago. 4
4
As Kowal proves too thin a reed upon which defendants can support an argument that they have established foreseeable harm, defendants have not shown that withholding the documents is appropriate, rendering their argument for reconsideration of the balancing of the public interest against the privacy interests non-dispositive. Accordingly, defendants’ assertion that Kowal controls the analysis of cognizable public interest, see Pl.’s Mem. at 5, as well as plaintiff’s response that Citizens for Responsibility & Ethics in Washington v. Department of Justice, 854 F.3d 675 (D.C. Cir. 2017), a decision never raised by the parties in the first round of dispositive briefing and thus not addressed in the prior decision, controls this analysis, see Pl.’s Mem. at 9-10, need not be reached.
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With the determination that Kowal, on either its facts or as a matter of law, does not alter
the reasoning of the previous decision regarding Exemptions 6 and 7(C), and upon consideration
of defendants’ supplemental declaration disentangling overlapping withholdings, plaintiff is thus
entitled to summary judgment as to the redactions and withholdings applied under Exemptions 6
and 7(C). Accordingly, defendants must produce to plaintiff the unredacted version of the disputed
responsive records where redactions and withholdings were made pursuant to Exemptions 6 and
7(C), but not those where redactions and withholdings were also made in tandem with Exemption
7(D). 5 At defendants’ request, see Defs.’ Mot. at 7-8, and without objection from plaintiff, see
Pl.’s Mem. at 10, the production required by the Order effectuating the conclusions in this
Memorandum Opinion will be stayed for sixty days until September 18, 2026, to allow defendants
time to consider filing an appeal and, absent defendants’ filing of an appeal, defendants will be
directed to produce the responsive records withheld only under Exemptions 6 and 7(C), within
thirty days after lapse of the stay, or by October 19, 2026.
IV. CONCLUSION
For the foregoing reasons, defendants’ motion for reconsideration of denial of summary
judgment as to defendants’ withholding of responsive records, under FOIA Exemptions 6 and
7(C), is denied, and plaintiff’s motion for summary judgment is granted as to those withheld
records, which must be disclosed. In accordance with defendants’ unopposed request, the
production ordered due to denial of defendants’ withholdings under FOIA Exemptions 6 and 7(C),
will be stayed for sixty days, until September 18, 2026, and, absent any appeal filed by defendants,
5
Defendants applied Exemptions 6 and 7(C) separately from Exemption 7(D), to portions of the following Bates-stamp numbered documents: 16-21, 23, 33-37, 40, 42, 44-46, 60-61, 63-65, 74, 85, 86, 89, 141, 143, 148, 190, 192-93, 232, 238, 243, 253, 260, 262, 278, 283-84, 329-30, 343-44, 427-28, 452-54, 503-04, 506-07, 521, 523-24, 531-32, 534, 537-38, 543, 567, 573-74, 691-96, 698, 702, 704-05, 708-10, 712, 716, 722, 727, 739, 754, 772, 794-95, 800-06, 808, 815, 826-27, 832, 848, 857-59, 861, 863-64, 882, 887-90, 945, 948-49. See Lara Decl. ¶ 6.
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the records at issue shall be disclosed within thirty days of the lapse of this stay, or by October 19,
2026.
An order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: July 20, 2026
BERYL A. HOWELL
United States District Judge
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