Anthony L. Viola v. United States Department of Justice, Federal Bureau of Investigation,…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 18-2573 & 22-2186
____________
ANTHONY L. VIOLA,
Appellant
v.
UNITED STATES DEPARTMENT OF JUSTICE,
FEDERAL BUREAU OF INVESTIGATION,
Records/Information Dissemination Section; UNITED
STATES DEPARTMENT OF JUSTICE, Executive Offices
for the United States Attorneys-Freedom of Information &
Privacy Staff; CUYAHOGA COUNTY MORTGAGE
FRAUD TASK FORCE; KATHRYN CLOVER
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 1:15-cv-00242)
District Judge: Honorable Susan Paradise Baxter
____________
Argued: July 13, 2023
Before: PHIPPS, McKEE, and RENDELL, Circuit Judges
(Filed: November 3, 2025)
____________

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Alan Chen [ARGUED]
Daniel Mejia-Cruz
YALE LAW SCHOOL
127 Wall Street
New Haven, CT 06511
Tadhg Dooley
David R. Roth
WIGGIN & DANA
One Century Tower
265 Church Street
New Haven, CT 06510
Counsel for Appellant
Laura S. Irwin
OFFICE OF UNITED STATES ATTORNEY
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Sharon Swingle
Daniel Winik [ARGUED]
UNITED STATES DEPARTMENT OF JUSTICE
CIVIL DIVISION APPELLATE
950 Pennsylvania Avenue NW
Washington, DC 20530
Counsel for Appellees United States
Department of Justice, Federal Bureau of
Investigation, Records/Information
Dissemination Section and United States
Department of Justice, Executive Offices for the
United States Attorneys-Freedom of
Information & Privacy Staff

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Jake A. Elliott [ARGUED]
CUYAHOGA COUNTY PROSECUTOR’S OFFICE
1200 Ontario Street
8th Floor
Cleveland, OH 44113
Counsel for Appellee Cuyahoga County
Mortgage Fraud Task Force
____________
OPINION OF THE COURT
____________
PHIPPS, Circuit Judge.
After an Ohio man was investigated by a county-specific
mortgage fraud task force, he was charged in federal court with
three dozen counts related to mortgage fraud. Following a trial,
the jury found him guilty of all but one of those counts. The
man was also charged in Ohio state court with fifty-two counts
related to the same underlying conduct. The state-court jury,
however, acquitted the man of all counts.
The disparity in those outcomes prompted the man, while
incarcerated, to look for evidence of governmental misconduct
associated with his federal convictions. As part of his efforts,
he submitted requests under the Freedom of Information Act
to two federal agencies. See 5 U.S.C. § 552. Neither agency
produced any records within the statutory response time, and
the man, then imprisoned in Pennsylvania, filed a civil
enforcement action against those agencies in the District Court.
After the litigation commenced, both agencies began
producing responsive records, and the man then moved to
amend his complaint to add as a defendant the county-specific
task force that had originally investigated him for mortgage
fraud. The District Court permitted that amendment, but it

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later granted the task force’s motion to dismiss for a lack of
personal jurisdiction. The two federal agencies filed a joint
dispositive motion, and the District Court entered summary
judgment in their favor. In this appeal, the man challenges the
District Court’s rulings with respect to the task force and the
two federal agencies.
For the reasons below, we will affirm the dismissal of the
county-specific task force for a lack of personal jurisdiction,
and we will affirm in part and vacate in part the entry of
summary judgment in favor of the federal agencies. The
vacated matter will be remanded to the District Court for
proceedings consistent with this opinion, and we will not retain
jurisdiction over the case while on remand.
I. FACTUAL BACKGROUND
In September 2007, the Ohio Organized Crime
Investigations Commission, a division of the Ohio Attorney
General’s Office, established the Cuyahoga County Mortgage
Fraud Task Force pursuant to Ohio law. See Ohio Rev. Code
Ann. § 177.02(B) (West 1999). The Task Force consisted of
six state and local law enforcement organizations that agreed
in 2008 to combat organized mortgage fraud in Cuyahoga
County by assigning their personnel to the Task Force.1 In
addition to its participating agencies, the Task Force
recognized the cooperation of additional federal, state, and
local agencies, including the Federal Bureau of Investigation
and the United States Attorney’s Office for the Northern
1 Those organizations were the Cleveland Heights Police
Department; the Office of the Prosecuting Attorney for
Cuyahoga County; the Cuyahoga County Sheriff’s Office; the
Pepper Pike Police Department; the Cleveland Police
Department; and the Bureau of Criminal Identification and
Investigation within the Ohio Attorney General’s Office.

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District of Ohio, both of which are agencies within the United
States Department of Justice.2
The Task Force’s investigative jurisdiction was limited to
Cuyahoga County, and as part of its mission, the Task Force
cooperated with the FBI to investigate Anthony Viola for
mortgage fraud in connection with nineteen properties there.
Viola, who lived in Cleveland Heights, Ohio, at the time, held
ownership interests in four businesses – Realty Corporation of
America, Central National Mortgage, Title Network of
America, and American Title Network. He was also the
president of Realty Corporation of America and a manager of
Transcontinental Lending Group.
The investigation into Viola led to his prosecutions in
federal court and state court. At the federal level, a grand jury
in the Northern District of Ohio indicted him in May 2009 on
thirty-four counts of wire fraud in violation of 18 U.S.C.
§ 1343 and two counts of conspiracy to commit wire fraud in
violation of 18 U.S.C. § 371. At the state level, Viola was
charged in the Cuyahoga County Common Pleas Court in
May 2010 with fifty-two counts of violating several provisions
of Ohio law related to mortgage fraud, including records
tampering, receipt of stolen property, and money laundering.
See Ohio Rev. Code Ann. §§ 1315.55, 2913.02(A), 2913.05,
2913.42, 2913.51, 2923.32. Viola maintained his innocence
and pleaded not guilty to all of the charges against him in both
cases.
In February 2011, the federal case went to trial. The jury
returned a verdict of guilty on thirty-five of the counts and not
2 The other cooperating agencies were the Office of the
Recorder for Cuyahoga County; the Office of the Auditor for
Cuyahoga County; the Office of the Treasurer for Cuyahoga
County; the Ohio Department of Commerce; the United States
Department of Housing and Urban Development; and the
United States Postal Inspection Service.

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guilty on one count of wire fraud. Viola later received a 150-
month prison sentence for those crimes consisting of 60-month
terms for the conspiracy charges and 150-month terms for the
wire-fraud charges – all to run concurrently.
In the time between the guilty verdict and Viola’s federal
sentencing hearing, yet still before the trial in state court, the
former Office Manager for the Task Force, Dawn Pasela,
contacted Viola. Pasela, who was in her mid-twenties and who
had been released from her position with the Task Force for
absenteeism, told Viola that the prosecutors had engaged in
misconduct by impermissibly destroying evidence and by
directing her to surreptitiously record their post-indictment
conversations with Viola to gain insight into his defense
strategy.
In 2012, before his trial on the state charges began, Viola
identified Pasela on his witness list and subpoenaed her to
testify. According to her father, two Task Force agents then
visited Pasela at her apartment, told her to leave Ohio for a
while, and indicated that if she testified for Viola, she could be
charged with federal crimes. Pasela then temporarily moved
in with her parents but later returned to her apartment. She did
not, however, appear to testify at trial at the designated time,
and the state court issued a bench warrant to compel her
appearance. After Pasela contacted the state court to explain
her concerns about testifying, it recalled the bench warrant, and
the trial proceeded without her testimony. Within a week, and
while the jury was deliberating, Pasela’s father found her dead
in her apartment, and the cause of death was later listed as acute
alcohol intoxication. Even without Pasela’s testimony, Viola
was acquitted on all counts.
In April 2013, while serving his federal sentence in prison
in Ashland, Kentucky, Viola made a request for records to the
FBI under the Freedom of Information Act, as amended,
commonly abbreviated as ‘FOIA.’ See 5 U.S.C. § 552. His
FOIA request sought records from October 1, 2008, through

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December 31, 2012, that referenced his name or his acquittal
in state court. He also requested records related to the seizure
of the trash from his Cleveland Heights home as well as Dawn
Pasela’s recordings of him. In addition, Viola requested emails
from Kathryn Clover, a witness who testified against him at
both trials, as well as reports of witness interviews made by the
FBI, technically designated as ‘FD-302s’ but commonly
referred to as ‘FBI-302s,’ that mentioned his name and were
prepared after March 1, 2011. Viola further requested records
regarding Pasela’s death.
In September 2014, after he had been transferred to Federal
Correctional Institution McKean in the Western District of
Pennsylvania, Viola submitted a FOIA request to the Executive
Office for United States Attorneys, an agency within the
Department of Justice. In that request, Viola sought records
“concerning [his] criminal case or any matters involving [him]
or [his] company.” EOUSA FOIA Req. (JA125). That
request, however, did not identify his company by name.
By October 2015, after several rounds of correspondence
with each agency, including a successful administrative appeal
of the FBI’s assertion of a blanket exemption for open
investigatory files, Viola had not received any records in
response to his requests. At that point, Viola was deemed to
have exhausted the administrative process, see 5 U.S.C
§ 552(a)(6)(C)(i), and he elected to initiate a pro se FOIA suit
against EOUSA and the FBI in the Western District of
Pennsylvania, which had subject-matter jurisdiction over the
case.3
3 It is unnecessary to decide whether the source of subject-
matter jurisdiction is the general federal question statute,
28 U.S.C. § 1331, or a provision in FOIA that mentions
jurisdiction, 5 U.S.C. § 552(a)(4)(B). The case arises under
FOIA, a federal statute, so there is federal question jurisdiction.
See 28 U.S.C. § 1331. And even if the reference in FOIA to

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II. PROCEDURAL HISTORY
While Viola’s suit was pending, the agencies began
producing records in response to his FOIA requests. In
October 2016, EOUSA asserted that it had produced all
responsive records. Its accompanying production consisted of
103 pages released without redactions and seventy-seven pages
released subject to redactions based on the exemptions
permitted by FOIA. See generally 5 U.S.C. § 552(b)(1)–(9).
In February 2017, the FBI completed its production of 647
pages in full and 738 in part. Each agency also produced a
Vaughn index – a document identifying the FOIA exemptions
asserted for each of the redactions and withholdings.4
EOUSA’s Vaughn index indicated that it withheld 649 pages
in full, and the FBI’s Vaughn index indicated that it withheld
1,169 pages in full.
While the agencies were producing records, and based on
the FBI’s partial production, Viola moved to amend his
complaint to add two new parties: the Task Force and Kathryn
jurisdiction is read as conferring exclusive jurisdiction on
certain identified federal courts, the District Court would still
have had subject-matter jurisdiction because Viola, by virtue
of his incarceration, resided in the Western District of
Pennsylvania at the time he initiated this lawsuit. See 5 U.S.C.
§ 552(a)(4)(B).
4 See Coastal States Gas Corp. v. Dep’t of Energy, 644 F.2d
969, 972 (3d Cir. 1981) (“A Vaughn index is a procedural tool
developed in Vaughn v. Rosen, 484 F.2d 820, 826–28
(D.C. Cir. 1973), . . . to enable a district court to evaluate
allegations of exemption advanced by a governmental agency,
and to assure that claimed exemptions are justified under
[FOIA].”); see also Biear v. Att’y Gen., 905 F.3d 151, 154
(3d Cir. 2018) (“[A] Vaughn index[ is] an itemized index
specifying the basis for withholding on a document-by-
document basis.”).

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Clover. See Fed. R. Civ. P. 15(a). The District Court granted
that motion.
Both newly added defendants then filed motions to dismiss.
They sought dismissal for a lack of personal jurisdiction, see
id. 12(b)(2), and they moved to dismiss for a failure to state a
claim upon which relief could be granted on the theory that
they were not federal agencies subject to FOIA, see id.
12(b)(6).
Those motions were assigned to a Magistrate Judge, who
issued a report and recommendation in favor of granting the
motions. Viola v. U.S. Dep’t of Just., 2017 WL 10294380, at
*1 (W.D. Pa. Aug. 8, 2017). After Viola objected to that report
and recommendation, the District Court agreed with the
dismissal of Clover but vacated the dismissal as to the Task
Force and referred that motion back to the Magistrate Judge.
Viola v. U.S. Dep’t of Just., 2017 WL 10294379, at *2
(W.D. Pa. Sept. 28, 2017).
While those issues were being briefed, EOUSA and the FBI
filed a joint dispositive motion on Viola’s FOIA claims. The
two agencies included, as exhibits to that motion, sworn
statements that addressed the adequacy of their searches for
responsive records and the exemptions identified in the
Vaughn indexes.
Once the briefing was complete, the Magistrate Judge
issued a report and recommendation to dismiss the Task Force
for a lack of personal jurisdiction, Viola v. U.S. Dep’t of Just.,
2018 WL 4599877, at *4–5 (W.D. Pa. May 11, 2018), and to
enter summary judgment in favor of EOUSA and the FBI, id.
at *7. The District Court adopted the Magistrate Judge’s report
and recommendation. Viola v. U.S. Dep’t of Just., 2018 WL
4599859, at *1 (W.D. Pa. June 11, 2018).
Through a timely notice of appeal of that final decision,
Viola invoked this Court’s appellate jurisdiction. See

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28 U.S.C. § 1291. While that appeal was pending, EOUSA
alerted this Court to its discovery of inaccuracies in its Vaughn
index and requested a voluntary remand for correction of those
errors. This Court granted that request for a partial remand but
retained jurisdiction over the remainder of the appeal, which
was then stayed. Around that time, the District Court
appointed Viola pro bono counsel.5 While that remand was
pending, the FBI filed a motion in this Court to expand the
scope of remand based on its discovery of additional
responsive records – it had excluded some electronic files from
its search – and this Court granted that motion but again
retained jurisdiction.
Each agency significantly supplemented its production
during the partial remand. EOUSA withdrew some of its
withholdings and, subject to both new and revised exemptions,
produced 267 pages in full and 225 pages in part. The FBI did
not assert any new exemptions, but it provided additional
records – its updated production consisted of 1,099 pages in
full and 1,099 pages in part. Both agencies again each
provided a Vaughn index for their supplemental productions.
According to those indexes, in total, EOUSA withheld 278
pages in full and the FBI withheld 6,877 pages in full. After
briefing on the supplemental productions, the District Court
reaffirmed its grant of summary judgment to EOUSA and the
FBI. Viola v. U.S. Dep’t of Just., 2022 WL 2374315, at *1
(W.D. Pa. June 10, 2022).
Viola again filed a timely notice of appeal, and this Court
lifted its stay of the original appeal and consolidated the stayed
case with the newly filed appeal. He now disputes the
dismissal of the Task Force for a lack of personal jurisdiction
5 The Court expresses gratitude for the pro bono services
provided by appointed counsel, in particular to Alan Chen and
Daniel Mejia-Cruz of the Yale Law School Advanced
Appellate Litigation Project, for their commendable advocacy.

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and the entry of summary judgment in favor of EOUSA and
the FBI.
III. DISCUSSION
A. The District Court lacked personal
jurisdiction over the Task Force.
The District Court dismissed Viola’s claim against the Task
Force on the ground that it lacked personal jurisdiction over the
Task Force. Viola, 2018 WL 4599859, at *1 n.1. Viola now
disputes that ruling. He attempts to meet his burden of
demonstrating personal jurisdiction, not by relying on any
relationship that the Task Force had with Pennsylvania,6 but
rather by arguing that the Task Force waived any challenge to
personal jurisdiction.7 Viola’s theory of waiver is somewhat
novel and consists of two parts: first, he argues that the Task
Force is a federal agency, and second, he contends that FOIA,
6 See generally Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct.,
592 U.S. 351, 358 (2021) (explaining that a federal court’s
power over a defendant depends on “the nature and extent of
‘the defendant’s relationship to the forum State’” (quoting
Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 582 U.S. 255,
262 (2017))); Daimler AG v. Bauman, 571 U.S. 117, 125
(2014) (observing that in civil cases, “[f]ederal courts
ordinarily follow state law in determining the bounds of their
jurisdiction over persons”); O’Connor v. Sandy Lane Hotel
Co., 496 F.3d 312, 316 (3d Cir. 2007) (“Once challenged, the
plaintiff bears the burden of establishing personal
jurisdiction.”).
7 See generally Ins. Corp. of Ir. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 703 (1982) (“Because the requirement
of personal jurisdiction represents first of all an individual
right, it can, like other such rights, be waived.”); cf. Fed. R.
Civ. P. 12(h)(1) (stating that a challenge to personal
jurisdiction, venue, process, and service of process may be
waived); 2 Moore’s Federal Practice § 12.31[3] (2025).

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by authorizing suits against federal agencies in certain district
courts, see 5 U.S.C. § 552(a)(4)(B), waives personal
jurisdiction for federal agencies, cf. Fed. R. Civ. P. 4(k)(1)(C)
(providing that personal jurisdiction can be established as
“authorized by a federal statute”).
For the first part of his argument, Viola contends that the
Task Force is a federal agency because it receives federal
funding and is subject to federal supervision. In Forsham v.
Harris, 445 U.S. 169 (1980), the Supreme Court preserved the
possibility that in some rare circumstances, a non-
governmental entity may constitute an agency for purposes of
FOIA by virtue of its receipt of federal funding coupled with
“extensive, detailed, and virtually day-to-day supervision” by
the federal government. Id. at 180. But cf. United States v.
Orleans, 425 U.S. 807, 817 (1976) (explaining that the federal
government does not create a federal agency just by “giv[ing]
counsel and help” and “mak[ing] available substantial
assistance” (citation omitted)). The Forsham case, however,
involved a group of private physicians and scientists who
received federal grants; it did not concern units of state and
municipal government, much less a task force comprised of
such organizations. Thus, by its own terms, Forsham does not
apply here, and extending it to these circumstances would blur
federalism principles by opening the possibility that, at least
for purposes of FOIA, units of state and local government
could simultaneously be federal agencies. That is far beyond
the text of the FOIA statute,8 so the narrow loophole left open
8 See 5 U.S.C. § 552(f)(1) (defining the term ‘agency’ for
purposes of FOIA primarily through a cross-reference to a
definition in the Administrative Procedure Act, see 5 U.S.C.
§ 551, but then supplementing it to “include[] any executive
department, military department, Government corporation,
Government controlled corporation, or other establishment in
the executive branch of the Government (including the
Executive Office of the President), or any independent
regulatory agency”); id. § 551(1) (defining ‘agency’ as “each

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by Forsham cannot be widened here: federal funding and
supervision are not sufficient to transform a state or local
governmental entity into a federal agency. And without the
ability to demonstrate that the Task Force constitutes a federal
agency for purposes of FOIA, Viola fails in his challenge to the
District Court’s dismissal of the Task Force for lack of
personal jurisdiction.9
B. Viola’s Civil Enforcement Action
The remainder of Viola’s case seeks relief permitted by
FOIA’s civil enforcement provision – an injunction of the
agencies from withholding records and an order for the
production of agency records improperly withheld. See
5 U.S.C § 552(a)(4)(B). But he did not move for summary
judgment; only the agencies did. See Fed. R. Civ. P. 56(b).
And in doing so, they argued that they discharged their FOIA
search obligations and that each of their specific redactions and
withholdings in full of records was justified such that Viola
was not entitled to any relief. The District Court was persuaded
by the agencies’ positions and entered summary judgment in
their favor. Viola, 2018 WL 4599859, at *1; Viola, 2022 WL
2374315, at *1. Viola now disputes that conclusion.
Specifically, he challenges the adequacy of the searches that
the agencies performed for responsive records, their assertions
authority of the Government of the United States, whether or
not it is within or subject to review by another agency”).
9 In light of this conclusion, it is unnecessary to review the
factual record to determine whether the Task Force actually
received federal funding or was under any form of federal
supervision. It is likewise unnecessary to address the second
part of Viola’s argument, whether FOIA waives personal
jurisdiction for federal agencies. And while the lack of
personal jurisdiction ends the matter, Viola did not submit a
FOIA request to the Task Force, so it is hard to envision a
scenario in which his FOIA claim against the Task Force could
succeed.

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of Exemptions 6, 7(C), 7(D), and 7(E), and their justifications
for withholding responsive documents in full. In addition,
Viola argues that the District Court did not adequately explain
its rationale for granting summary judgment.
1. EOUSA’s search for records responsive
to Viola’s FOIA request was adequate;
the FBI’s search was not.
Viola disputes the District Court’s conclusion that EOUSA
and the FBI performed adequate searches in response to his
FOIA requests. The widely accepted standard for the adequacy
of an agency’s search comes from the D.C. Circuit’s decision
in Oglesby v. United States Department of the Army, 920 F.2d
57 (D.C. Cir. 1990).10 That standard, which this Circuit has
embraced, see Abdelfattah v. U.S. Dep’t of Homeland Sec.,
488 F.3d 178, 182 (3d Cir. 2007), evaluates the adequacy of an
agency’s search for records responsive to a FOIA request by
examining the agency’s explanation, usually in the form of a
sworn statement, in two respects: the completeness of the
locations and files searched, and the methods used to search
those locations and files, see Oglesby, 920 F.2d at 68. For the
first criterion, the agency must demonstrate that it searched all
locations and files “likely” to have responsive records. Id.; see
also Abdelfattah, 488 F.3d at 182. For the second, the agency
must show that its methods for searching those locations and
files were “reasonably calculated” to find responsive records.
Oglesby, 920 F.2d at 68; see also Weisberg v. U.S. Dep’t of
Just., 705 F.2d 1344, 1351 (D.C. Cir. 1983); Morley v. Cent.
Intel. Agency, 508 F.3d 1108, 1114 (D.C. Cir. 2007);
10 See, e.g., Maynard v. Cent. Intel. Agency, 986 F.2d 547, 559
(1st Cir. 1993); Am. C.L. Union Immigrants’ Rts. Project v.
U.S. Immigr. & Customs Enf’t, 58 F.4th 643, 655 n.15 (2d Cir.
2023); Ethyl Corp. v. U.S. Env’t Prot. Agency, 25 F.3d 1241,
1247 (4th Cir. 1994); Batton v. Evers, 598 F.3d 169, 176
(5th Cir. 2010); Rubman v. U.S. Citizenship & Immigr. Servs.,
800 F.3d 381, 387 (7th Cir. 2015).

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Abdelfattah, 488 F.3d at 182. Viola challenges the agencies’
searches under both components of the Oglesby standard.
a. The completeness of the locations
searched
Viola argues that EOUSA did not search all locations and
files likely to have responsive records because it searched only
his case file and the files of the Assistant United States
Attorney who prosecuted his case.
Viola’s characterization unfairly shortchanges EOUSA’s
search. In its supporting declaration, EOUSA explained that it
also searched its FOIA storage room, electronic folders, and a
database within the United States Attorney’s Office for the
Northern District of Ohio, which it believed would locate “any
and all records related to Mr. Viola or his business.” Cain
Decl. ¶ 24 (JA671). That suffices under the Oglesby standard.
And although Viola’s FOIA request to EOUSA did not
mention either Dawn Pasela or Kathryn Clover, EOUSA
nonetheless searched the same database and the email of the
AUSA who prosecuted Viola for records related to Pasela or
Clover. In addition, it specifically searched the United States
Attorney’s Office for “tapes, transcripts, or recordings”
regarding Pasela or Clover. Id. ¶ 30 (JA672). By those
actions, EOUSA discharged and indeed surpassed its FOIA
obligations in terms of the locations and files that it searched,
and this aspect of Viola’s challenge is meritless.
With respect to the FBI, Viola argues that its explanation
for the location it searched for responsive records – the Central
Records System – was inadequate. He contends that the FBI
did not explain why it searched only its Central Records
System. See Competitive Enter. Inst. v. Off. of Sci. & Tech.
Pol’y, 827 F.3d 145, 149 (D.C. Cir. 2016) (“[T]he agency must
search and disclose records that [are] not on its premises but
[are] under its ‘constructive control.’” (quoting Burka v. U.S.
Dep’t of Health & Hum. Servs., 87 F.3d 508, 515 (D.C. Cir.
1996))).

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Here, Viola has a point. The FBI explained that records
responsive to his FOIA request “would reasonably be expected
to be located in” its Central Records System. 3d Seidel Decl.
¶ 28 (JA746). At face value, the FBI’s explanation is
inadequate. The Oglesby standard requires more than a search
of the locations “most likely” to have responsive records; it
demands that an agency search all locations likely to have
responsive records. Oglesby, 920 F.2d at 67–68 (citation
omitted); see also DiBacco v. U.S. Army, 795 F.3d 178, 190
(D.C. Cir. 2015) (“‘[M]ost likely’ is not the relevant metric.”).
And the FBI did not expressly ‘close the loop’ by stating that
no location other than its Central Records System would likely
have records responsive to Viola’s FOIA request. Cf.
Campbell v. U.S. Dep’t of Just., 164 F.3d 20, 28 (D.C. Cir.
1998) (recognizing that an agency has “discretion to confine its
inquiry to a central filing system if additional searches are
unlikely to produce any marginal return”); see also Oglesby,
920 F.2d at 68 (explaining that an agency need not “search
every record system”). Nor is there a readily apparent basis for
reasonably inferring such closure.11 Thus, without closing the
Oglesby loop either expressly or through reasonable inference,
the FBI was not entitled to summary judgment as to the
11 In pro se FOIA litigation in the District Court for the District
of Columbia about separate FOIA requests, Viola
unsuccessfully argued that the FBI had constructive control
over records within the Task Force’s possession. Viola v. U.S.
Dep’t of Just., 2019 WL 2437692, at *3 (D.D.C. June 11,
2019) (concluding that “the [Task Force’s] records are not
subject to control by the EOUSA or any other federal entity”).
The FBI now argues that under collateral estoppel, that issue
cannot be relitigated here, and thus the scope of its search was
adequate. But even if the Task Force was not reasonably likely
to have FBI records within the FBI’s constructive control, the
FBI did not adequately indicate that the remainder of its record
systems were not likely to have any responsive records.

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adequacy of the locations and files that it searched. See
DiBacco, 795 F.3d at 188.
b. The reasonableness of the
agencies’ search methods
Viola also argues that neither EOUSA nor the FBI used
reasonable methods to search the locations and files for
responsive records.
He faults EOUSA because it searched only files relating to
him for information about his company, Realty Corporation of
America. EOUSA justified that approach on the premise that
all records related to Realty Corporation of America would be
in the same location as records related to Viola. It is not
necessary to address the adequacy of EOUSA’s justification,
however, because a FOIA request must on its face reasonably
identify the requested information. See Miller v. Casey,
730 F.2d 773, 777 (D.C. Cir. 1984) (“The agency [is] bound to
read [a FOIA request] as drafted, not as either agency officials
or [the requester] might wish it was drafted.”). And here
Viola’s FOIA request sought records “concerning . . . any
matters involving [him] or [his] company” without identifying
his company by name. EOUSA FOIA Req. (JA125). That is
not a reasonably specific request, especially since Viola had
ownership interests in multiple business associations. Because
of that deficiency in the FOIA request itself, EOUSA was
under no obligation to search for information related to Viola’s
unidentified company, and in attempting to locate records
related to Realty Corporation of America, EOUSA again
exceeded its FOIA search obligations. See generally TD Bank
N.A. v. Hill, 928 F.3d 259, 270 (3d Cir. 2019) (“[The Court]
may affirm on any basis supported by the record, even if it
departs from the District Court’s rationale.”).
Viola additionally asserts that EOUSA’s search method
was unreasonable because the Assistant United States Attorney
whom Viola accused of misconduct was allowed to search for
records regarding Pasela or Clover. Viola’s suspicions as to

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18
the AUSA’s misconduct are based on the AUSA’s resignation
after an internal investigation. But, in tasking that AUSA – the
one assigned to prosecute Viola – with partial responsibility for
finding agency records regarding Viola or his company,
EOUSA relied on the person with arguably the most
knowledge about potentially responsive records to search for
those records. And it takes more than a FOIA requestor’s
suspicions and accusations of an agency employee to render a
FOIA search performed by that employee unreasonable. Even
more, that AUSA was not the sole person responsible for
searching those files: his legal assistant and the FOIA contact
for the United States Attorney’s Office for the Northern
District of Ohio also conducted that search. Thus, EOUSA
performed an otherwise reasonable search.
As to the FBI, Viola argues that its search method was
deficient because it searched only files indexed by his name
and his casefile. Viola contends that a broader search was
needed for his requests for information about (i) Pasela’s
recordings of him; (ii) the FBI-302s dated after March 1, 2011,
that specifically mentioned his name; (iii) emails from Clover
to the FBI about him; and (iv) information regarding Pasela’s
death. With respect to the first three categories, Viola
requested only those records pertaining to Pasela’s recordings,
FBI-302s, and emails from Clover that also mentioned his
name, and so it was reasonable for the FBI to search only files
indexed by Viola’s name and his casefile. But as to records
regarding Pasela’s death, Viola’s FOIA request was not limited
to records that mentioned his name. Although this aspect of
Viola’s request was comparatively broader than the others, the
FBI did not correspondingly expand its search method.
Instead, it asserted that “[c]onsidering the nature of the
specifically requested items, it is reasonable for the FBI to
conclude that if such records existed in the [Central Records
System], then they would be indexed to Plaintiff.” 3d Seidel
Decl. ¶ 30 (JA746–47). That statement does not explain why
all of the records regarding Pasela’s death would likely be
indexed by Viola’s name or in his casefile. And with that gap

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19
in reasoning, the FBI failed to justify the reasonableness of its
search in response to Viola’s request for records relating to
Pasela’s death.
2. EOUSA and the FBI did not sufficiently
justify all of their assertions of FOIA
exemptions.
EOUSA withheld 272 pages in full and 225 pages in part
based on Exemptions 3, 5, 6, and 7(C). The FBI withheld
6,877 pages in full and 1,099 pages in part based on
Exemptions 3, 6, 7(C), 7(D), and 7(E). On appeal, Viola
challenges EOUSA’s and the FBI’s assertions of Exemptions 6
and 7(C) and the FBI’s assertions of Exemptions 7(D) and
7(E).
a. Exemptions 6 and 7(C)
To protect the privacy interests of third parties mentioned
in records responsive to Viola’s FOIA requests, EOUSA and
the FBI asserted Exemptions 6 and 7(C). Exemption 6 protects
privacy generally by permitting an agency to 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). Exemption 7(C)
provides a greater degree of protection in the context of
“records or information compiled for law enforcement
purposes” by allowing agencies to withhold information that
“could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” Id. § 552(b)(7)(C). Although
the textual scope of the two exemptions differs, both are
evaluated by balancing “the public interest served by
disclosure against the harm resulting from the invasion of
privacy,” with the balance more readily protecting information
subject to Exemption 7(C) than Exemption 6 materials. Int’l
Bhd. of Elec. Workers Loc. Union No. 5 v. U.S. Dep’t of Hous.
& Urb. Dev., 852 F.2d 87, 89 (3d Cir. 1988); see also Sheet
Metal Workers Int’l Ass’n, Loc. Union No. 19 v. U.S. Dep’t of
Veterans Affs., 135 F.3d 891, 898 (3d Cir. 1998).

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20
Those two exemptions were the ones most frequently
asserted by the agencies in withholding information responsive
to Viola’s FOIA requests. EOUSA relied on at least one of
those exemptions for 155 out of the 278 pages that it withheld
in full and for redactions to all 225 of the pages that it released
in part. The FBI always invoked Exemptions 6 and 7(C) in
tandem, and they formed at least one of the grounds for each
of the 6,877 pages it withheld in full and for all but five of the
1,099 pages it released in part.
Perhaps due to the frequency of the agencies’ assertions of
those exemptions, Viola’s primary attack is general in nature:
he contends that the agencies provided only “generic
justifications” for invoking them. Viola’s Opening Br. 43. But
an agency’s justification for FOIA redactions or withholdings
is not deficient if it allows for meaningful challenges to the
applicability of an exemption. See Davin v. U.S. Dep’t of Just.,
60 F.3d 1043, 1049 (3d Cir. 1995) (explaining that “the
agency’s explanation [must be] full and specific enough to
afford the FOIA requester a meaningful opportunity to contest,
and the district court an adequate foundation to review, the
soundness of the withholding” (quoting McDonnell v. United
States, 4 F.3d 1227, 1242 (3d Cir. 1993))); see also Campbell,
164 F.3d at 34 (explaining that the reviewing court must have
enough factual information to perform a “meaningful” review).
Here, to justify their withholdings, the agencies produced
Vaughn indexes and corresponding supporting sworn
statements – in addition to the records that they produced with
partial redactions. EOUSA’s format for its Vaughn index is
beyond reproach: it described each document subject to
redaction and identified with particularity the basis for each
privacy exemption through explanations such as “[s]ocial
security number redacted” and “[n]ames and email addresses
redacted.” EOUSA 2020 Vaughn Index 1–2 (JA652–53). The
FBI took a different approach – its Vaughn index provided a
document-by-document, page-by-page description of its
withholdings, and for purposes of Exemptions 6 and 7(C), it

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21
grouped the persons whose information was redacted on
privacy grounds into nine categories.12 Such a grouping for an
exemption’s applicability is permissible if the agency’s
explanation specifically describes the categories and
“correlate[s] the claimed exemptions to the withheld
documents.” Davin, 60 F.3d at 1051; see also Jud. Watch, Inc.
v. Food & Drug Admin., 449 F.3d 141, 147 (D.C. Cir. 2006)
(asserting that an agency need not provide “repetitive, detailed
explanations for each piece of withheld information”). The
FBI’s Vaughn index meets that standard.
Nor is there a broad problem with the agencies’ supporting
sworn statements. Those assessed the privacy interests for
each person or category of persons, considered the public
interests associated with the disclosure of that information, and
then balanced the privacy interests against the public interests.
It may be that in some instances those explanations do not
justify a particular redaction or withholding in full, but both
agencies’ overall approaches to their exemptions allow for
meaningful, specific challenges to individual redactions and
withholdings in full. Thus, Viola’s general challenge to the
adequacy of the agencies’ methods for justifying their assertion
of FOIA exemptions fails.
12 Those categories were “FBI Special Agents and Support
Personnel”; “Non-FBI Federal Government Personnel”;
“Local/State Law Enforcement Personnel”; “Local/State
Government Personnel”; “Third Parties of Investigative
Interest”; “Third Parties [W]ho Provided Information to the
FBI”; “Third Parties Merely Mentioned”; “Third Party
Victims”; and “Third Party Individuals [Whose Information
Was Collected] by a Private Investigation Firm Hired by
Anthony Viola.” FBI 2020 Vaughn Index A-1–A-2 (JA841–
42).

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22
Consistent with that conclusion, Viola disputes four
applications of Exemptions 6 and 7(C).13 With respect to
EOUSA, he contests its reliance on those exemptions with
respect to marked trial exhibits; an ethics complaint that Viola
made against his lawyer along with related correspondence;
and witness statements and interviews. For the FBI, Viola
challenges the redactions to a single document that it produced
– handwritten notes from a third-party interview discussing
Viola.
i. The Withheld Trial Exhibits
As to EOUSA’s documents marked as trial exhibits, Viola
challenges the withholding of seven in full and the release of
three in part based on Exemptions 6 and 7(C).
Some of those documents were identified as government
exhibits. That is noteworthy because once a document is
identified as a government exhibit for a public hearing, that
indicates that the government has already weighed the public
and private interests related to that document’s disclosure and
decided that, if helpful to the government, the information
would become publicly known. In that circumstance, in which
otherwise private information is ready for public release, much
of the balancing required for Exemptions 6 and 7(C) has
already been resolved – in favor of disclosure. Thus, when an
agency seeks to withhold a document that has been identified
as a government trial exhibit on the basis of Exemption 6
or 7(C), it must show not only that the exhibit was not used at
a public trial but also that the reason for its non-use was
grounded in personal privacy considerations as opposed to trial
13 EOUSA and the FBI also explained that their withholdings
in full of documents under Exemptions 6 and 7(C) were based
on their conclusions that the remainders of those documents
were not reasonably segregable from the exempted portions.
Viola does not develop a challenge to those general assertions
regarding reasonable segregability.

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23
strategy. But cf. Cottone v. Reno, 193 F.3d 550, 556 (D.C. Cir.
1999) (holding that for purposes of Exemption 3 – statutorily
protected information, see 5 U.S.C. § 552(b)(3) – there must
be actual use of the exhibit at trial).14 EOUSA has not provided
such a justification here for the documents identified as
government trial exhibits.
The remainder of the exhibits were identified as defense
exhibits, and EOUSA has treated those as agency records in
withholding information in them pursuant to FOIA
exemptions. Cf. generally U.S. Dep’t of Just. v. Tax Analysts,
492 U.S. 136, 144–45 (1989) (articulating criteria for agency
records); Project on Predatory Lending of the Legal Servs. Ctr.
of Harvard L. Sch. v. U.S. Dep’t of Just., 325 F. Supp. 3d 638,
648–54 (W.D. Pa. 2018) (evaluating whether documents
received by a United States Attorney’s Office in civil discovery
qualified as agency records). With little else known about
those documents beyond their designation as defense exhibits
and EOUSA’s treatment of them as agency records, EOUSA
has not provided enough information to balance privacy
concerns against the public interest in their disclosure.
Thus, EOUSA has not met its burden of justifying the
application of Exemptions 6 or 7(C) to documents identified as
defense exhibits.
ii. The Ethics Complaint and
Correspondence with
Disciplinary Counsel
Viola also contests EOUSA’s redactions in three
documents related to a grievance he filed against his attorney.
14 EOUSA asserted Exemption 3 for two trial exhibits, but not
ones for which it invoked Exemption 6 or Exemption 7(C), and
Viola does not contest the application of that exemption.

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24
The first document was a complaint about his attorney that
Viola submitted to the Cleveland Metropolitan Bar
Association. EOUSA invoked Exemption 6 to redact an
address, date of birth, and home phone number. Those items
implicate personal privacy concerns. See Int’l Bhd., 852 F.2d
at 89. While there may be some public interest in that
information, there is little reason to believe that any such public
interest increases the transparency of the operations of EOUSA
or other federal agencies. And when the public interest in
information has little bearing on the operations or activities of
federal agencies, the balance more readily tips in favor of the
privacy interests. See U.S. Dep’t of Def. v. Fed. Lab. Rels.
Auth., 510 U.S. 487, 495 (1994) (“[T]he only relevant ‘public
interest in disclosure’ to be weighed . . . is the extent to which
disclosure would serve the ‘core purpose of the FOIA,’ which
is ‘contribut[ing] significantly to public understanding of the
operations or activities of the government.’” (third alteration
in original) (first emphasis added) (quoting U.S. Dep’t of Just.
v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 775
(1989))); Reps. Comm., 489 U.S. at 773 (explaining that FOIA
was not designed to disclose “information about private
citizens that is accumulated in various governmental files but
that reveals little or nothing about an agency’s own conduct”).
Thus, EOUSA’s redactions to this document were permissible.
That same analytical framework applies to the other two
documents, which were letters from the Disciplinary Counsel
of the Supreme Court of Ohio that EOUSA produced subject
to redactions of the name and signature on the letter. The
specific signatory of the letters from the Ohio Disciplinary
Counsel sheds very little light on the “operations or activities”
of a federal agency, and hence there is not a high degree of
public interest in that person’s identity. Fed. Lab. Rels. Auth.,
510 U.S. at 495 (emphasis removed) (quoting Reps. Comm.,
489 U.S. at 775). But Disciplinary Counsel is itself a public
office in Ohio, see Office of Disciplinary Counsel of the
Supreme Court of Ohio, Frequently Asked Questions,
https://odc.ohio.gov/faq (choose “What is the Office of

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25
Disciplinary Counsel?”) [https://perma.cc/3YLM-VTMQ],
and thus if the signatory were a public officeholder – as
opposed to a staff member in that office – then there is little
privacy interest that the public officeholder has in the
correspondence sent from his or her office. Accordingly, the
balance weighs in favor of disclosure if the signatory is a public
official and against disclosure if the signatory is a staff member
in that office. But here, because EOUSA has not provided
additional details that would rule out a public officeholder as
the signatory, it has not met its burden for justifying the
redaction of that information from those two letters.
iii. The Withheld Witness
Statements and Interviews
Viola also contends that EOUSA improperly relied on
Exemptions 6 and 7(C) to withhold fifteen witness statements
and interviews in full and one in part to protect the identity of
the witnesses. While the witnesses have some privacy interests
in preventing the disclosure of their personally identifiable
information in EOUSA’s files, EOUSA did little to justify
these withholdings – almost as if there were a FOIA exemption
permitting the withholding of all witness statements. Cf.
5 U.S.C. § 552(b)(7)(D) (allowing the withholding of
information related to confidential sources). Instead of
providing a basis for any specific redactions,15 much less for
withholding the documents in their entirety, EOUSA stated
that the documents contained information that was
“inextricably intertwined” with the exempt information.
EOUSA 2020 Vaughn Index 7 (JA658). Yet without
additional context, such a conclusory statement has little
persuasive value. See Ferri v. Bell, 645 F.2d 1213, 1217
(3d Cir. 1981) (explaining that privacy interests must be
examined in context). In short, there is no recognized blanket
rule that the balance of privacy concerns and public interests
15 It did, however, clarify that for the document released in part,
it redacted just the signature.

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26
favors withholding witness statements, and the justifications
offered by EOUSA for redacting and withholding in full the
fifteen witness statements are insufficient.
iv. The Handwritten Notes
from a Third-Party
Interview
Viola specifically challenges only one FBI document –
handwritten notes from a third-party interview discussing
Viola that the FBI withheld in part pursuant to Exemptions 6
and 7(C). Viola challenges the redactions made to those notes
on the ground that the interviewee appeared at times to refer to
previous statements that Viola had made, and from there, Viola
contends that the redacted portions of the notes must not
contain any personally identifiable information. That
argument lies more in conjecture than sound logic, and it does
not fare well against the concrete explanation that the FBI
provided in its declaration, which was that the documents did
contain personally identifying information about private
individuals who were the targets of FBI investigations,
cooperated with the FBI, were victims of Viola, or were
otherwise mentioned in the files and would be harmed by the
disclosure of their information. Thus, Viola comes nowhere
close to overcoming the FBI’s justification for these
redactions.
b. Exemption 7(D)
To protect the identities of its confidential sources, the FBI
invoked Exemption 7(D). By its terms, that exemption
authorizes withholding “records or information compiled for
law enforcement purposes” that “could reasonably be expected
to disclose the identity of a confidential source.” 5 U.S.C.
§ 552(b)(7)(D). In addition, it permits withholding
“information furnished by a confidential source” when that
information is compiled by a criminal law enforcement
authority in the course of a criminal investigation (or a national
security intelligence investigation). Id. The FBI applied

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27
Exemption 7(D) to twenty-three FBI-302s,16 thirty-two sets of
handwritten notes used to prepare the FBI-302s,17 four sets of
notes of non-FBI-302 third-party interviews,18 and fifteen
documents related to third-party messages and financial
documents.19
As with any exemption, an agency asserting
Exemption 7(D) bears the burden of proving its applicability.
See U.S. Dep’t of Just. v. Landano, 508 U.S. 165, 171 (1993);
see also 5 U.S.C. § 552(a)(4)(B) (imposing the burden on an
agency that withholds information responsive to a FOIA
request to sustain the withholding). And here, Viola argues
that the FBI did not satisfy one component of its burden with
respect to its Exemption 7(D) withholding: proof that the
identity of the source was confidential.
The confidentiality of a source is not presumed from that
source’s voluntary provision of information to a law
enforcement agency. See Landano, 508 U.S. at 181 (“[T]he
Government is not entitled to a presumption that a source is
confidential within the meaning of Exemption 7(D) whenever
the source provides information to the FBI in the course of a
criminal investigation.”). Rather, for the FBI to demonstrate
confidentiality, it must show that “the source furnished
information with the understanding that the FBI would not
divulge the communication except to the extent the Bureau
thought necessary for law enforcement purposes.” Id. at 174.
16 The FBI made redactions to sixty pages of the FBI-302s, and
it withheld another thirty-one pages in full.
17 The FBI made redactions to 141 pages of those handwritten
notes, and it withheld ninety-six pages in full.
18 The FBI made redactions to four pages, and it withheld none
of those documents in full.
19 The FBI withheld twenty-four pages of those documents in
full.

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28
The FBI can meet that standard by showing that it gave the
source an express assurance of confidentiality or by relying on
circumstances that make the assurance of confidentiality
implicit. See id. at 172 (citing S. Rep. No. 93-1200, at 13
(1974)); Davin, 60 F.3d at 1061.
In this appeal, the FBI does not argue that it gave any source
an express assurance of confidentiality; instead, it contends
that under the circumstances, the sources received implied
assurances of confidentiality. The Supreme Court has
recognized two circumstances in which an implied assurance
of confidentiality may be inferred: the “character of the crime
at issue” and the “source’s relation to the crime.” Landano,
508 U.S. at 179. Both of those circumstances are ‘FOIA
workable’ in the sense that they do not necessarily require an
agency to disclose additional exempted or otherwise
confidential information to justify a withholding or redaction.
See id. at 180 (emphasizing the importance of workable FOIA
standards to minimize “the extent that the Government’s
proof” that an asserted exemption applies “may compromise
legitimate interests”); H.R. Rep. No. 89-1497, at 6 (1966) (“It
is vital to our way of life to reach a workable balance between
the right of the public to know and the need of the Government
to keep information in confidence to the extent necessary
without permitting indiscriminate secrecy.”).20 For the first
recognized circumstance, when the character of the crime at
issue is publicly known, it may be possible to infer serious
dangers associated with providing information to law
enforcement, and thus, an agency need not disclose any
exempted or otherwise confidential information to justify an
20 Cf. Halpern v. Fed. Bureau of Investigation, 181 F.3d 279,
294 (2d Cir. 1999) (explaining that a “workable solution”
involves supporting withholdings with information “that is not
only specific enough to obviate the need for an in camera
review[] but that also enables the court to review the agency’s
claimed redactions without having to pull the contextual
information out of the redacted documents for itself”).

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29
implied assurance of confidentiality for purposes of
Exemption 7(D). See Landano, 508 U.S. at 179 (opining that
an implied assurance of confidentiality may be reasonably
inferred when the source witnessed a gang-related murder).
Similarly, the source’s relation to the crime can be FOIA
workable. If a source provides evidence against an
organization known for “engag[ing] in acts of violence or
harassment[] or threaten[ing] to do so,” then an implied
assurance of confidentiality may be inferred for that source.
Davin, 60 F.3d at 1063.
The FBI, however, does not rely on either of those FOIA-
workable circumstances for implying an assurance of
confidentiality. Instead, it contends, first, that the information
provided by the sources is singular such that knowing the
information would reveal the identity of the source and,
second, that the consequences for disclosing the source’s
identity would be “disastrous.” 3d Seidel Decl. ¶ 70 (JA770).
The FBI is correct that, if proven, singularity of information
coupled with disastrous consequences for the source would
allow a reasonable inference that the source of the singular
information received an implied assurance of confidentiality.
The drawback of the singularity-plus-consequences approach
to Exemption 7(D) is that additional details are needed to
establish singularity and the disastrous consequences
therefrom. Singularity requires evidence, at least at a general
level, that only the source could have provided the information.
And the forecasted disastrous consequences must be identified
and be caused by persons or groups who could ascertain the
source from the singularity of the information provided.
Because those extra layers of detail – many of which may
themselves be confidential – are needed to establish the
singularity-plus-consequences method of implying an
assurance of confidentiality, that approach is not nearly as
FOIA workable as the two circumstances recognized by the
Supreme Court from which an assurance of confidentiality can
be inferred. Thus, when a law enforcement agency relies on a
singularity-plus-consequences approach to demonstrate an

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30
implied grant of confidentiality, it will need to supply
additional evidence for its position, and that may entail in
camera submissions. See Landano, 508 U.S. at 180
(recognizing that when “the Government’s proof may
compromise legitimate interests, . . . the Government still can
attempt to meet its burden with in camera affidavits”).
Here, setting aside its wholly conclusory statements about
singularity and disastrous consequences, the FBI, which did
not make any in camera submissions, has not provided the
factual details needed to support a reasonable inference of an
implied grant of confidentiality. The FBI’s sworn statements
and Vaughn indexes do not identify the number of confidential
sources. That alone renders impossible any meaningful
singularity analysis, since singularity necessarily depends on
there being a sole source for the information provided. The
FBI likewise does not indicate how the persons or groups who
could recognize the source from the information provided
would be likely to retaliate against the source – let alone inflict
disastrous consequences on the source.
In sum, the FBI’s approach to implying an assurance of
confidentiality is not as FOIA workable as the two narrow
circumstances identified by the Supreme Court, and here, the
FBI does not provide the comparatively greater amount of
support needed to justify the conclusion that the sources
received an implied assurance of confidentiality. And without
demonstrating that any of the information was properly
redacted, the FBI has also failed to establish that it has
produced all reasonably segregable non-redacted information
in response records. See Davin, 60 F.3d at 105; see also Mead
Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242,
260 (D.C. Cir. 1977). Thus, neither its specific redactions nor
its withholding of pages in full under Exemption 7(D) can be
sustained on this record.

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c. Exemption 7(E)
The FBI also asserted another of the law enforcement
exemptions, Exemption 7(E), with respect to five categories of
information. See generally Davin, 60 F.3d at 1051 (permitting
agency use of categorical identifiers for FOIA exemptions).
That exemption allows withholding information in agency
records related to “techniques and procedures for law
enforcement investigations or prosecutions, or . . . 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).
On appeal, Viola challenges the FBI’s use of that
exemption as to one of the identified categories of information.
The FBI designated that category as “(b)(7)(E)-7” and
described it as referring to search results from the National
Crime Information Center’s database concerning information
that was requested by and provided to law enforcement
agencies. FBI 2020 Vaughn Index A-2 (JA842).21 The FBI
identified twenty-two documents, totaling twenty-seven pages,
within that category, and those were dated either April 29 or
April 30, 2009.
To justify its withholding in full of those documents, the
FBI relied only on the techniques-and-procedures prong of
21 The FBI provided the following descriptions for the four
other categories of information that it was withholding under
Exemption 7(E): Category (b)(7)(E)-1 for the effectiveness
rating of statistical information contained in FBI Internal
Database Form FD-515; Category (b)(7)(E)-5 for the
collection, methodology, and analysis of investigative
information obtained during searches of internal FBI
databases; Category (b)(7)(E)-8 for internal FBI secure email,
IP addresses, and internet/web addresses; and
Category (b)(7)(E)-9 for Computer Analysis Response Team
examination results.

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Exemption 7(E) – not that exemption’s guidelines prong.22
The techniques-and-procedures prong does not apply to
“routine techniques and procedures already well-known to the
public, such as ballistic tests, fingerprinting, and other
[common] scientific tests” but rather only to techniques and
procedures that are not widely known. Ferri, 645 F.2d at 1224;
see also Davin, 60 F.3d at 1064. In support of its application
of Exemption 7(E) to the NCIC reports, the FBI averred that
the release of those specific database reports would allow
individuals to “surmise what agency and when and how that
agency was able to obtain information concerning their
criminal activities.” 3d Seidel Decl. ¶ 87 (JA780).
The problem for the FBI is that its justification for applying
Exemption 7(E) requires an extension of the plain text of the
statute. See 5 U.S.C. § 552(b)(7)(E). A request by a law
enforcement agency for information from the NCIC database
is itself a technique or procedure – and one that the FBI readily
acknowledges, which makes it a technique or procedure
common enough to fall outside of the protection of
Exemption 7(E). Indeed, the FBI is not trying to protect
disclosure of the practice of law enforcement agencies making
requests to the NCIC database; instead, it attempts to withhold
the results of that well-known technique. But without more,
neither the specifics of a NCIC search request – including the
identity of the requesting entity, the date of the request, and the
22 See Davin, 60 F.3d at 1064 (interpreting the requirement that
“disclosure could be reasonably expected to risk circumvention
of the law” as applying to the techniques-and-procedures prong
as well as the guidelines prong (quoting 5 U.S.C. § 552(b)(7));
Blackwell v. Fed. Bureau of Investigation, 646 F.3d 37, 42
(D.C. Cir. 2011) (same). But see Grey v. Alfonso-Royals,
140 F.4th 173, 179 (4th Cir. 2025) (interpreting the
requirement as applying to only the guidelines prong);
Hamdan v. Dep’t of Just., 797 F.3d 759, 778 (9th Cir. 2015)
(same); Allard K. Lowenstein Int’l Hum. Rts. Project v. Dep’t
of Homeland Sec., 626 F.3d 678, 681 (2d Cir. 2010) (same).

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33
nature of the request – nor the details of the search result can
be fairly understood as a law enforcement technique or
procedure.
Tellingly, the FBI does not make that argument. Instead, it
attempts to justify its application of Exemption 7(E) to
information related to NCIC database searches by emphasizing
that “[p]ublic confirmation of NCIC queries would alert
individuals that they may be the subject of an investigation by
a particular law enforcement agency.” 3d Seidel Decl. ¶ 87
(JA780). That is certainly a legitimate law enforcement
concern. But Congress separately accounted for that interest
with Exemption 7(A), which applies when the production of
“law enforcement records or information . . . could reasonably
be expected to interfere with enforcement proceedings.”
5 U.S.C. § 552(b)(7); see also NLRB v. Robbins Tire & Rubber
Co., 437 U.S. 214, 225 (1978) (explaining that
Exemption 7(A) applies not only to active litigation but also to
investigations). And in moving for summary judgment in
2017, the FBI did not assert Exemption 7(A) over the NCIC
database search results from April 2009. The potential
application of Exemption 7(A) to preserve the interests the FBI
identifies coupled with its non-assertion here confirms that it is
incorrect to extend Exemption 7(E) beyond its text so that it
would cover not only techniques and procedures but also the
results of the everyday application of widely known law
enforcement techniques and procedures. See Davin, 60 F.3d at
1064 (rejecting the FBI’s assertion of Exemption 7(E) over
well-known techniques unless the government offers specific
evidence that the information would risk circumvention of the
law). Accordingly, the FBI has failed to justify its application
of Exemption 7(E) to the identified documents. In addition,
because the FBI did not attempt to segregate exempted material
from nonexempted material within the NCIC results, its
justification for withholding in full is likewise inadequate.

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C. Viola’s challenge to the adequacy of the
District Court’s summary judgment opinion
is unsuccessful.
Viola additionally disputes the adequacy of the District
Court’s explanation for its decision granting summary
judgment in favor of the federal agencies. His argument is
premised on a supervisory rule announced in Coastal States
Gas Corp. v. Department of Energy, 644 F.2d 969 (3d Cir.
1981), which requires that district courts “state explicitly the
legal basis as well as the findings that are necessary to
demonstrate that the documents are exempt or disclosable
under the FOIA.” Id. at 980. But a district court’s findings of
fact and conclusions of law, while helpful, are not essential
when an appellate court engages in de novo review because that
form of review is a fresh look, undertaken as if there had been
no prior district court decision. See Choctaw Nation v. United
States, 119 U.S. 1, 30 (1886) (explaining that de novo review
involves review “from the beginning, and as if the [case] were
new and had freshly arisen” in that court); cf. Fed. R. Civ.
P. 52(a)(1) (requiring district courts to make findings of fact
and conclusions of law in cases tried “without a jury or with an
advisory jury”). And indeed, on de novo review of the District
Court record in this case, it was possible to resolve each of
Viola’s challenges. Thus, any error by the District Court in its
explanation was harmless. See Fed. R. Civ. P. 61 (“At every
stage of the proceeding, the court must disregard all errors and
defects that do not affect any party’s substantial rights.”);
Morgan v. Covington Township, 648 F.3d 172, 180 (3d Cir.
2011) (“[A]s . . . the Federal Rules of Civil Procedure . . . make
clear, ‘[a]n error that is harmless is not grounds for disturbing
a judgment.’” (alteration in original) (quoting Burkhart v.
Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1214
(D.C. Cir. 1997))). So because the most that Viola could
establish would be harmless error, his challenge to the
adequacy of the District Court’s explanation fails.

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IV. CONCLUSION
For these reasons, the District Court’s orders will be
affirmed in part, vacated in part, and remanded for further
proceedings. In particular, the District Court’s order granting
the Task Force’s motion to dismiss for a lack of personal
jurisdiction is affirmed. The order granting summary judgment
for EOUSA is affirmed with respect to its search obligations
but vacated and remanded with respect to its redactions and
withholdings in full of trial exhibits, correspondence with
disciplinary counsel, and witness statements based on
Exemptions 6 and 7(C). The order granting summary
judgment for the FBI is affirmed with respect to its search for
records related to Pasela’s recordings, FBI-302s, and Clover
that mentioned Viola’s name, as well as to its redactions and
withholdings under Exemptions 6 and 7(C). But it is vacated
and remanded with respect to the locations searched, the
method of searching for records relating to Pasela’s death, and
the FBI’s redactions and withholdings in full under
Exemptions 7(D) and 7(E). Because only EOUSA and the FBI
– not Viola – moved for summary judgment, on remand, Viola
may move for summary judgment, and the District Court may,
in its discretion, permit EOUSA and the FBI to move for
summary judgment again, based on revised searches,
explanations, and segregability analyses, for the remanded
portions of this case.

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