Smith v. The Federal Bureau of Investigations

IN THE UNITED STATES_.DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CHARLES ROBERT SMITH,
Plaintiff, 	•
v.
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*
*
* 	Civil No. 25~12-BAH
FEDERAL BUREAU OF INVESTIGATION,
*
Defendant.
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*. * 	* 	* 	* 	* 	* 	* 	* 	* 	*
MEMORANDUM OPINION
* 	* 	*
Plaintiff Charles Robert Smith ("Smith") brought suit against Defendant Federal Bureau
oflnvestigation (the "FBI") seeking injunctive and declaratory relief to compel the FBI, pursuant
to the Administrative Procedure Act ("APA"), 5 U.S.C. § 702 et seq., to provide information for
use in Smith's defense related to the FBI's ongoing investigation into Mario Mireles Ruiz ("Ruiz"),
whom Smith is charged with murdering. 	See ECF 1. 	Pending before the Court are ·the FBI's
motion for summary judgment, ECF 33, and Smith's cross-motion for summary judgment, whjch
also serves as Smith's opposition to the FBI's motion, ECF 37. 	The FBI filed an opposition to
Smith's crosscmotion for summary judgment. ECF 38. Also pending before the Court is Smith's
motion to supplement the administrative record, ECF 31, to which the FBI filed an opposition,
ECF 3 6. 1 The Court has reviewed all relevant filings and finds that no hearing is necessary. See
Loe. R. 105.6 (D. Md. 2025). 	Accordingly, for the reasons stated below, Smith's motion to
1 The Court references all filings by their respective ECF numbers and page numbers by the ECF-
generated page numbers at the 'top of the page.
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supplement is DENIED, the FBI,'s motion for summary judgment is GRANTED, and Smith's
cross-motion for summary judgment is DENIED.
I. 	BACKGROUND
The Court repeats the facts from its prior memorandum opinion in a related case, Maryland
v. Smith, 766 F. Supp. 3d 498, 502-05 (D. Md. 2025). On June 11, 2023, Ruiz, Christian Segovia,
and Nicoles Mireles were killed in a mass shooting in Annapolis, Maryland. 	Three others-
Rosalina Segovia, Paul Melvin Johnson, III, and Enner Canales Hernandez-.were injured. Smith
is charged with murder, assault, and other charges related to the shooting.
After the shooting occurred, the Annapolis Police Department requested that the FBI assist
with processing the crime scene, which included the deployment of the FBI Laboratory Shooting
Reconstruction Team. The FBI documented its investigative efforts in FBI Case File #343G-BA-
3773068 (the "343G Assist File"). Separately, at the time of, and unrelated to the mass shooting,
the FBI and the United States Attorney's Office for the District of Maryland ("USAO-MD") were
investigating Ruiz for potential involvement in drug distribution. 	That investigati~n, which
remains ongoing at the time of this litigation, is documented in FBI Case File #281C-BA-3708548
(the "28 IC Investigation File").
As a result of the shooting, Smith was charged with 42 crimes, including three counts of
first-degree murder, six counts of attempted first-degree murder, and three counts of first-degree
mw;der substantially motivated by animus towards persons of Hispanic national origin. The Anne
Arundel County State's Attorney's Office's ("AAC-SAO's") prosecution of Smith is ongoing.
Smith is represented by the Maryland Office of the Public Defender ("MPD"). 	Smith admits to
perpetrating the shooting, and Smith's defense counsel has represented that they intend to defend
Smith by contending that Smith carried out the shooting in defense of himself and his mother.
2
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For reasons still apparently unclear to the FBI, the separate investigation into Ruiz became
public, prompting the AAC-SAO and MPD to serve discovery requests on the FBI. Beginning in
January 2024, a series of requests were filed in the underlying state court criminal.case. 	Such
requests are commonly referred to as "Touhy requests," on which a bit of background is useful for
understanding this case.
Under 5 U.S.C. § 301, "commonly known as the 'Housekeeping Statute,' federal agencies
are granted authority to prescribe regulations governing the agency, including regulations for 'the
custody, use, and preservation of its records, papers, and property."' 	U,nited States y. Williams,
170 F.3d 431, 433 (4th Cir. 1999) (quoting 5 U.S.C. § 301). 	In United States ex rel. Touhy v.
Ragen, 340 U.S. 462, 466-68 (1951) ("Touhy"), the Supreme Court recognized the validity ofa
Department of Justice_ ("DOJ") order that restricted the disclosure of information pursuant to the
Housekeeping Statute. In so holding, the Supreme Court observed that "[w]hen one considers the
variety of information contained in the files of any government department and the possibilities of
harm from unrestricted disclosure in court, the usefulness, indeed the necessity, of centralizing
determination .as to whether subpoenas duces tecum will be willingly obeyed or challenged is
obvious." Id. at 468. The term "Touhy regulations" thus "refer[s] to the processes for requesting
official information from U.S. government agencies in court proceedings" pursuant to rules
promulgated by federal agencies governing disclosure of such information. 	Iovino· v. Michael
StapletonAssocs., Ltd., No. 5:21-CV-00064, 2024 WL 3520170, at *1 (W.D. Va. July 24, 2024),
appeal dismissed, No. 24-1735, 2025 WL 2269780 (4th Cir. Apr. 16, 2025). 	"Touhy requests"
refer to the discovery requests made under those regulations.2 See id.
2 The DOJ's Touhy regulations, applicable here, are found at 28 C.F.R. §§ 16.21-29. See Smith,
.766 F. Supp. 3d at 501 n.l; see also Gui/univ. Levy, 85 F.4th 76, 82 (1st Cir. 2023) (citing 28
C.F.R. §§ 16.21-29).
3
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On January 26, 2024, the AAC-SAO sent the FBI a Touhy request seeking the production
of portions of the 281 C Investigation File and the testimony of an FBI Agent or other federal
officer to fulfill the State's disclosure requirements under Brady v. Maryland, 373 U.S.-83 (1963).
On February 12, 2024, the USAO-MD sent a limited Touhy authorization letter in response to the
first AAC-SAO Touhy request. 	Specifically, the USAO-MD authorized the disclosure of four
written reports from. the 281 C Investigation File that were "redacted as needed to protect the
integrity of the Investigation." The USAO-MD did not, however, authorize "(1) the production of
materials, documents, or information relating to or documenting criminal conduct that occurred	. 	.
after Mr. Ruiz's death, or (2) the testimony of current or former FBI agents in the State's case."
Additionally, the USAO-MD did not authorize the release of, inter a/ia, any documents or
information "that may compromise any ongoing federal criminal investigation," the "identity of
or information indicating the identity of confidential sources or information," or any "documents
regarding investigative techniques, target names, informant names, witnesses, defendants, criminal
case numbers, or matters that occurred before a federal grand jury."
On June 7, 2024, the MPD sent the FBI a Touhy demand of its own seeking the production
of documents, and related trial testimony of two FBI agents, regarding any known g~ng affiliations
of the Mireles family and associates, and their alleged intent to finance violence against, and
possibly the murder of, Smith. 	On July 	JI, 2024, the USAO-MD sent a limited Touhy
authorization letter in response to the MPD's request. 	The FBI produced documents, subject to
the terms and conditions in the authorization letter, from the 343G Assist File. 	However, the
production of materials, documents, or information from the 281 C Investigation File, as well as
the requested trial testimony of FBI agents, was not authorized for the same reasons articulated in
the USAO-MD's response to the first AAC-SAO Touhy request.
I
4
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On December 20, 2024, the FBI removed Smith's criminal case from the Circuit Court for
Anne Arundel County to this Court for the purpose of quashing certain subpoenas and orders from
the circuit court arising from those Touhy requests. See State of Maryland v. Charles Smith, Civ.
No. 24-3699-BAH (D. Md.), ECF I. In that case, the Court held that sovereign immunity barred
the Anne Arundel County Circuit Court and this Court from compelling the FBI to produce
documents or requiring FBI agents to testify, and the Court observed that the proper channel
through which Smith could challenge the FBI' s decision, and the only mechanism for judicial
review of a final agency action, was under the AP A. See Smith, 766 F. Supp. 3d at 509.
On January 2, 2025, Smith filed this action, seeking judicial review of the FBI's response
to his Touhy request pursuant to the AP A. See ECF I. In Count One, Smith alleges that the FBI
has "unlawfully withheld and unreasonably delayed the disclosure of information regarding the
criminal ties of ... Ruiz and other members of the Mireles family" and seeks an injunction to
compel the FBI to disclose such information. 	ECF I, at 10-11. 	In Count Two, Smith seeks
essentially identical declaratory relief under the APA. See id. at 11-12. On July I, 2025, the FBI
filed the administrative record with the Court, ECF 28, and on July 15, 2025, the FBI filed a motion
for summary judgment, ECF 33. On July 13, 2025, Smith moved to supplement the administrative
record, ECF 31, and on August 6, 2025, Smith filed a cross-motion for summary judgment, ECF
3 7. These motions are now ripe for resolution.
II. 	LEGALSTANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted
"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). "In a case involving review of a
final agency action under the APA, however, the standard set forth in Rule 56(a) does not apply
because of the limited role ofa court in reviewing the administrative record." Nat'! Fed'n of the
5
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Blindv. U.S. Abilityone Comm'n, 421 F. Supp. 3d 102, 114 (D. Md. 2019) (citing Otsuka Pharm.
Co., Ltd. v. Burwell, Civ. No. GJH-15-852, 2015 WL 3442013, at *5 (D. Md. May 27, 2015)).
Summary judgment thus_ serves merely as the "mechanism for deciding, as a matter oflaw, whether
the agency action is supported by the administrative record and is otherwise consistent with the
APA standard of review." Id. 	"[T]he function of the district court is to determine whether or not
as a matter of law the evidence in the administrative record permitted the agency to make the
decision it did." Id. (alteration in Nat'! Fed'n of the Blind) (quoting Air Transp. Ass'n of Am. v.
U.S. Dep't ofAgric., 303 F. Supp. 3d 28, 38 (D.D.C. 2018)).
The AP A requires courts to "hold unlawful and set aside agency action, findings, and
conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with Jaw." 	5 U.S.C. § 706(2)(A). 	"The scope of review under the 'arbitrary and capricious'
standard is narrow and a court is not to substitute its judgment for that of the agency." Motor
Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
However, the agency must "articulate a satisfactory explanation for its action including a 'rational
connection between the facts found and the choice made."' Id (quoting Burlington Truck Lines
v. United States, 371 U.S. 156, 168 (1962)). 	Agency actiof\ is generally considered arbitrary or
capricious if the agency "has relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of th(e problem, offered an explanation for its
decision that runs counter to the evidence before _the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency expertise." Id
"[T]he Fourth Circuit [has] held that courts should review [an agency's] refusal to comply
with a third-party subpoena under the arbitrary and capricious standard set forth in the" AP A. In
re Subpoena to Nat'! Sci. Found., Off of Inspector Gen.; No. 3:18-MC-00006-JAG, 2018 WL
I !
6
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5017612, at *2 (E.D. Va. Oct. 16, 2018) (citing COMSAT Corp. v. Nat'/ Sci. Found., 190 F.3d
269, 274 (4th Cir. 1999)). 	As the Fourth Circuit observed, an agency's refusal "is essentially a
policy decision about the best use of the agency's resources." COMSAT Corp., 190 F.3d at 278.
"Reviewing courts, therefore, must 'defer to the agency's judgment, recognizing ... that federal
judges-who have no constituency-have a duty to respect legitimate policy choices made by
those who do.,,, In re Subpoena to Nat'/ Sci. Found, 2018 WL 5017612, at *2 (quoting COMSAT
Corp., 190 F.3d at 278).
III. 	ANALYSIS
A. 	Motion to Supplement the Administrative R_ecord
Smith moves to supplement the administrative record, ECF 31, which the FBI opposes,
ECF 36. As a general matter, the Court must "review an agency's decision 'solely by the grounds
invoked by the agency."' Jimenez-Rodriguez v. Garland, 996 F.3d 190, 194 (4th Cir. 2021) (citing
SECv. Chenery Corp., 318 U.S. 80, 87-88 (1943)). Accordingly, "claims brought under the APA
are adjudicated without a trial or discovery, on the basis of an existing administrative, record."
Audubon Naturalist Soc '.Y of The Cent. At!. States, Inc. v. US. Dep 't ofTransp., 524 F. Supp. 2d
642, 660 (D. Md. 2007); see also Hampton Univ. v. Accreditation Council for Pharmacy Educ.,
No. 4:20CV118 (RCY), 2021 WL 3166380, at *12 (E.D. Va. July 27, 2021) ("Judicial review of
an accrediting agency's decision is generally confined to the administrative record." (citing
Professional Massage Training Ctr., Inc. v. Accreditation All. of Career Schs. & Coils., 781 F.3d
161, 174-75 (4th Cir. 2015))). 	The administrative record "is 'the full administrative record that
was before' the agency decision maker at the time of the decision." Id (quoting Citizens to Pres.
Overton Park, Inc. v. Volpe, 401 U.S. 402,420 (1971)).
"If an agency fails to produce a complete administrative record, a party may request that
the record be supplemented." Hilaire v. United States, Civ. No. GJH-22-923, 2023 WL 284448,
7
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at *4 (D. Md. Jan. 18, 2023), appeal dismissed, No. 23-1185, 2023 WL 5346068 (4th Cir. May 2,
2023). However, "[s]upplementation of the administrative record is the exception, not the rule."
Otsuka Pharm. Co. v. Burwell, Civ. No. GJH-15-852, 2015 WL 1579127, at *2 (D. Md. Apr. 8,
2015) (alteration in Burwell) (quoting Pac. Shores Subdivision, Cal. Water Dist. v. US. Army
Corps ofEng'rs, 448 F. Supp. 2d I, 5 (D.D.C. 2006)). "[A]bsent clear evidence to the contrary,
an agency is entitled to a strong presumption of regularity, that it properly designated the
administrative record." Bimini Superfast Operations LLCv. Winkowski, 994 F. Supp. 2d 103, 105
(D.D.C. 2014) (quoting Pac. Shores, 448 F. Supp. 2d at 5). 	Nevertheless, "an 'agency may not
skew the record by excluding unfavorable information but must produce the full record that was
before the agency at the time the decision was made.'" Burwell, 2015 WL 1579127, at *2 (quoting
Blue Ocean Inst. v. Gutierrez, 503 F. Supp. 2d 366, 369 {D.D.C. 2007)). 	"Nor may· an agency• 	.
exclude information simply because it did not rely on it for its final decision." Id. (citing Banner
Health v. Sebelius, 945 F. Supp. 2d I, 16 (D.D.C.2013)). "This means an agency mustinclude all
documents and materials 	'directly or indirectly' considered by the agency." 	S.C. 	Coastal
Conservation League v. Ross, 431 F. Supp. 3d 719, 722 (D.S.C. 2020) (first citing Bar MK Ranches
v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993); and then citing Thompson v. US. Dep 't of Labor,
885 F.2d 551,555 (9th Cir. 1989)).
"To overcome the presumption that the agency properly designated the record, 'a plaintiff
must (I) identify reasonable, non-speculative grounds for the belief that the documents were
considered by the agency and not included in the record, and (2) identify the materials allege~ly
omitted from the record with sufficient specificity, as opposed to merely proffering brciad
categories of documents and data that are likely to exist as a result of other documents that are
included in the administrative record[.]'" 	Outdoor Amusement Bus. Ass 'n, Inc. v. Dep 't of
8
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Homeland Sec., Civ. No. ELH-16-1015, 2017 WL 3189446, at *13 (D. Md. July 27, 2017)
(alteration in Outdoor Amusement) (internal quotation marks omitted) (quoting Ctr. for Food
Safetyv. Vi/sack, No. 15CV01590HSGKAW, 2017 WL 1709318, at *13 (N.D. Cal. May 3, 2017)).
• An administrative record can be supplemented "in one of two ways-either by (1)
including evidence that should have been properly a part of the administrative record but was
excluded by the agency, or (2) adding extrajudicial evidence that was not initially before the
agency but the party believes should nonetheless be included in the administrative record."
Burwell, 2015 WL 1579127, at *3 (quoting WildEarth Guardians v. Salazar, 670 F. Supp. 2d 1, 5
n.4 (D.D.C. 2009)). 	Here, Smith seeks supplementation of the record in primarily the former
respect. 	See ECF 31, at 2. 	Smith argues that several heavily redacted documents should be
included as unredacted in the record. 	See id. (seeking to include "[u]nredacted copies of all
documents submitted by Defendant on or about July I, 2025," "[u]nredacted copies of the February
12, 2024 Memorandum re: Touhy Request, referenced in the Defendant's privilege log," and
"[u]nredacted copies of the July 10, 2024 Memorandum re: Touhy Request referenced in the
Defendant's privilege log")'. 	Smith also seeks to include a "privilege log or Vaughn index" and
"[a]ll emails and communications generated by the Defendant but not included in the July 1, 2025
Administrative Record, including but not limited to those sent within the agency and those sent
externally to the 	Office of the 	States Attorney for Anne Arundel 	County and local 	law
enforcement." Id.
1. 	Privileged Information
The FBI indicates that there are two types of redacted material in the administrative record
before the Court-first, redactions applied to information unauthorized for disclosure, and second,
other redactions that are purportedly "PI," or personal information redacted in accordance _with
Federal Rule of Civil Procedure 5.2. 	See ECF 36, at 4--5; e.g., ECF 28-1, at 5. 	Under that rule,
9
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parties must generally redact portions of "an individual's social-security number, taxpayer-
identification number, or birth date, the name of an individual known to be a minor, or a financial-
account number." Fed. R. Civ. P. 5.2(a}. There appears to be no dispute between the parties that
this category of redactions CO\lld be properly applied. 	See ECF 36, at 5; ECF 32, at 6.
Nevertheless, 	Smith takes 	issue with 	(I) 	the 	redacted 	copies 	of "all documents" in the
administrative record, (2) redacted copies of "the February 12, 2024 Memorandum re: Touby
Request" and (3) "the July 	10, 2024 Memorandum re: 	Touhy Request referenced in the
Defendant's privilege log." ECF 32, at 6.
First, 	Smith's 	general 	request for the 	uhredacted 	copies 	of all 	documents 	in the
administrative record in overbroad and thus insufficient. Smith's request to supplement the record
must "identify the materials allegedly omitted from the record with sujjicient specificity, as
opposed to merely proffering broad categories of documents and data." Outdoor Amusement, 2017
WL 3189446, at *13 (emphasis added) (citation omitted). Requesting that this Court order "[a]n
unredacted copy of the administrative record" is contrary to that directive. 	See ECF 32-1, at 1.
Moreover, the FBI observes that the non-PI redactions in the administrative record "appear on four
FBI reports provided ... on or about March 4, 2024, in. response to the [AAC]-SAO's Touhy
request to the FBI." ECF 36, at 5; see also ECF 28-1, at 12-23 (redacted materials). However, as
the FBI observes,_ these reports were not redacted as part of the compilation of the administrative
record, but rather as a result of the FBI's decision not to authorize their disclosure in response to
the Touhy requests. 	See ECF 36, at 5. 	Smith cannot gain access to the very information this
lawsuit seeks to compel through the procedural backdoor of supplementation.
As to Smith's more specific requests for unredacted copies of the memoranda referenced
in the privilege log the FBI provided to Smith, those materials are not appropriately included in an
I 10
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administrative record. 	"A complete administrative record . . . does not include, privileged
materials, such as documents that fall within the deliberative process privilege, attorney-client
privilege, and work product privilege." Tafasv. Dudas, 530 F. Supp. 2d 786,794 (E.D. Va. 2008)
(citing Town of Norfolk v. U.S. Army Corps of Eng'rs, 968 F.2d 1438, 1457-58 (1st Cir. 1992)).
!ndeed, "the D.C. Circuit long ago held that 'internal memoranda made during the decisional
process ... are never included in a record."' Id (quoting Norris & Hirshberg v. SEC, 163 F.2d
689, 693 (D.C. Cir. 1947)) (collecting cases). 	"Deliberative materials are excluded from the
administrative record for two reasons." Id First,judicial review of agency action should be based
on the agency's stated justification-the pre-decisional pro9ess and subjective motivations of
agency decisionmakers are irrelevant as a matter of law. See id. 	Second, "excluding deliberative
materials 'prevent[s] injury to the quality of agency.decisions' by encouraging uninhibited and
frank discussion of legal and policy matters." 	Id (alteration in Tafas) (quoting NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 150-52 (1975)).
Smith argues that the FBI bears the burden of proving that the document is privileged, and
. he contends that "the mere self serving act of titling a document memorandum does not properly
invoke the privilege." ECF 32, at 3-5. In support of those propositions, Smith invokes Ethyl Corp.
v. United States Environmental Protection Agency, 25 F.3d 1241 (4th Cir. 1994). There, the Fourth
Circuit considered a plaintiff's challenge brought under the Freedom oflnformation Act to compel
the production of records from the EPA relevant to the EPA's denial of a waiver for approval of a
gasoline additive. Id. at 1243. The district court had concluded that the EPA's efforts in searching
information were adequate, there was no dispute of material fact, and that no in camera inspection
of records was necessary to resolve the case. 	See id. 	The Fourth Circuit reversed because it
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concluded that "factual questions remained on issues on which the EPA had the burden of proof."
Id.
In so holding, the Fourth Circuit explained that ."review of the agency's decision to
withhold a document" in the context of a FOIA determination "does not automatically require
an in camera inspection." Id at 1249 (citing EPA v. Mink, 410 U.S. 73, 93 (1973)). Rather, the
D.C. Circuit in Vaughn v. Rosen; 484 F.2d 820 (D.C. Cir. 1973), created "a mechanism to take
advantage of the flexibility allowed by" avoiding in camera review while also balancing the "one-
sided nature ofl] a FOIA production." Ethyl Corp., 25 F.3d at 1249. "The court in Vaughn thus
directed that the government provide a detailed justification for its exemption and index the
documents against the justification, fragmenting the documents into segregable parts"-what has
come to be known as a Vaughn index. Id. at 1250. Further, the Fourth Circuit observed that the
FOIA statute "requires partial disclosure of records 'reflecting deliberative or policy making
processes on the one hand, and purely factual, investigative matters on the other."' Id. (quoting
Mink, 410 U.S. at 89). "And the EPA, in [that] case, ha[d] the burden of showing that no segregable.
information exists." Id. (citing Army Times Publishing Co. v. Dep't ofAir Force, 998 F.2d 1067,
1071 (D.C. Cir. 1993)). 	Applying those principles to the case before it, the .Fourth Circuit
determined that "[w]ith respect to both the question of whether the EPA conducted an adequate
search for records and the question of whether it justifiably has withheld [ ] documents, the district
court seems to have placed the burden of proof on Ethyl, contrary to the terms of the FOIA." Id.
Several features distinguish this case from Ethyl Corp., the most important of which is that	. 	.
this case is an APA action, not a FOIA action. In FOIA litigation, "it is the agency which has the
burden of demonstrating, for each identifiable document, that the document fits into one of the
exemptions," and exemptions are "construed narrowly in favor of disclosure." Freeman v. US.
12
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Dep 't of Just., 723 F. Supp. 1115, 1119 (D. Md. 1988) (citations omitted). Most of the precedent
Smith invokes come from the FOIA context. 	See ECF 37-1, at 7-9. 	In an APA challenge,
however, "as part of the 'presumption of regularity' traditionally afforded to government officials
carrying out their duties, 'when an agency certifies that the administrative record it has provided
to the court is complete, courts generally presume it to be so absent clear evidence to the contrary."'
CASA, Inc. v. Noem, Civ. No. 25-1484-TDC, 2025 WL 3514378, at *8 (D. Md. Dec. 8, 2025)
(quoting Mestanek v. Jaddou, 93 F.4th 164, 172 (4th Cir. 2024)).
Consequently, the Court concludes that Smith's request for in-camera review of the FBI's
material designated as privileged is not warranted here. 	Smith has not provided any reason why
the Court should suspect the memoranda are anything other than what the FBI has described.
Moreover, the proper focus of the Court's inquiry in an APA case is on the agency's articulated
reasons for the action it took, rather.than its pre-decisional process. The administrative record as
filed provides the Court with a clear picture of the FBI's reasoning for its decision in response to
Smith's Touhy request. Relatedly, the Court declines Smith's request to require the FBI to produce
its privilege log for judicial review. 	Generally, no privilege log is required for "internal emails,
correspondence, summaries, and drafts" because those materials "are not properly part. of the
administrative record in the first place." Outdoor Amusement, 2017 WL 3189446, at *21 (quoting
Tafas, 530 F. Supp. 2d at 801-02). That the FBI provided such a log to Smith, rather than to the
Court, was sufficient.
2. 	Email Communications
Smith also contends that the administrative record should be supplemented with "any and
all emails and communications generated by the Defendant but not included" in the administrative
record, "including but not limited to those sent within the Agency and those sent externally to the
Office of the States Attorney for Anne Arundel County and local law enforcement in Anne Arundel
13 •
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County." ECF 32, at 6. 	Like Smith's request for the unredacted copies of all documents in the
administrative record, his ask here sweeps too broadly and lacks the requisite support.
To overcome the presumption of completeness in the administrative record, Smith needed
to "identify reasonable, non-speculative grounds for the belief that the documents were considered
. by the agency and not included in the record" and identify those documents "with sufficient
specificity, as opposed to merely proffering broad categories.'' See Outdoor Amusement, 2017
WL 3189446, at *13. 	Despite the requirement of specificity, the FBI's "emails" are the only
documents mentioned, and they are only referenced in the conclusion and proposed order attached
to Smith's motion to supplement the administrative record. 	See. ECF 32, at 6; ECF 32-1, at I.
Smith does not point the Court towards any indication in the record that these emails even exist.
Cf Mestanek, 93 F.4th at 172 ("As for the other two 'missing' documents, it is not even clear that
they exist. Nothing in the record refers to any notes taken by the FDNS investigators or even
suggests that notes were taken, and the Mestaneks' speculation alone will not suffice."). Indeed,
Smith acknowledges his limited ability to demonstrate "that there were communications between
the federal 	government and state and local law enforcement that are not included in the
administrative record." ECF 32, at 4. 	In the absence of any suggestion about what these emails
or other communications contain, or what in this record indicates their existence, the presumption
of compl_eteness afforded to the agency remains intact.
Moreover, ordering the inclusion of agency communications in as broad a manner as Smith
requests would almost certainly result in the inclusion of communications inappropriate for
supplementation. First, any internal FBI email communications related to Smith's Touhy request
are 	likely 	deliberative 	and 	pre-decisional 	materials 	not 	appropriate 	for 	inclusion· in 	an
administrative record. 	See Outdoor Amusement, 2017 WL 3189446, at *15 (determining that
,,
1',,
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several agency emails were quintessentially deliberative and unrelated to the relevant regulations);
see also Comprehensive Cmty. Dev. Corp. v. Sebelius, 890 F. Supp. 2d 305, 313 (S.D.N.Y. 2012)
(holding that the non-inclusion of various pre-decisional materials, including "emails and other
documents,'' was justified); Tafas, 530 F. Supp. 2d at 801 (concluding that "internal emails,
correspondence,. summaries, 	and 	drafts" 	plaintiff sought 	were 	"not 	properly 	part 	of the
administrative record in the fi_rst place"); Ad Hoc Metals Coal. v. Whitman, 227 F. Supp. 2d 134,
142-43 (D.D.C. 2002) (declining to supplement the record "with a number of internal EPA e-mails
exchanged throughout the [] rulemaking process"). 	Second, Smith's request indicates that he is
particularly .interested in communications between the, FBI and the AAC-SAO related to AAC-
SAO's Touhy request. 	However, the decision-making process and justifications provided by the
FBI regarding a separate Touhy request, even a related one, are not the proper subject of this
Court's consideration, and Smith does not have standing to challenge that distinct agency action .
. Accordingly, Smith's motion to supplement the administrative record is denied.
B. 	Motions for Summary Judgment
The FBI and Smith both move for summary judgment in their favor. 	See ECF 33 (FBI);
ECF 37 (Smith). The parties focus on two issues: (1) whether the FBI's decision on Smith's Touhy
request ran afoul of Smith's constitutional rights under the Sixth Amendment in violation of
§ 706(2)(B) of the APA and (2) whether the FBI's decision was arbitrary and capricious in
violation of§ 706(2)(A) of the AP A. The Court addresses each issue in turn.
1. 	. The FBI has not violated Smith's rights under the Sixth Amendment and
Brady.
"Section 706(2)(B) directs that the reviewing court set aside agency actions the court finds
to be 'contrary to constitutional right, power, privilege, or immunity."' Darden v. Peters, 488 F.3d
277,283 (4th Cir. 2007) (quoting 5 U.S.C. § 706(2)(B)). "Under the APA, constitutional questions
15
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that arise during APA review fall expressly within the domain of the courts." Id. at 283-84. "Thus,
judicial review of a claim that the agency's actions violated a claimant's constitutional rights is
conducted de nova." Id. at 284 (citing Western Energy Co. v. United States Dep 't ofInterior, 932
F.2d 807, 809 (9th Cir.1991)). Smith argues that the FBI's partial denial of his Touhy request was
contrary to his constitutional rights under the Sixth Amendment as articulated in Brady v..
Maryland, 373 U.S. 83 (1963). See ECF 1, at 10; ECF 37-1, at 12.
"The Supreme Court has always defined the Brady duty as one that rests with the
prosecution." 	Jean v. 	Collins, 221 F.3d 656, 660 (4th Cir. 2000) (en bane) (Wilkinson, J.,
concurring, joined by Widener, Wilkins, Niemeyer, Williams, & Traxler, JJ.) (collecting cases).
"Under Brady, 'suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution."' United States v. Briscoe, l 0 1 F.4th 282, 297 (4th
Cir. 2024) (emphasis added) (quoting Brady, 373 U.S. at 87).
The government's duty to disclose exculpatory and impeachment evidence "encompasses
not only material that is· in· the po.ssession of the prosecutor, but also material that is 'known to
others acting on the ·government's behalf in the case, inc[uding the police."' 	Horton v. United
States, 983 F. Supp. 650, 654 (E.D. Va. 1997) (quoting Kyles v. Whitley, 514 U.S. 419,437 (1995)).
"But there is no 'duty on the prosecutor's office to learn of information possessed by other
government agencies that have no involvement in the investigation or prosecution at issue."' Id.
(quoting United States v. Morris, 80 F.3d 1151, 1169 (7th Cir. 1996)). 	"The prosecutor's
constructive knowledge of material evidence extends only to 'federal agenc[ies] participating in
the same investigation of the defendant."' 	Id. (alteration in Horton) (quoting, United States v.
Bryan, 868 F .2d 1032, 1036 (9th Cir. 1989)). Here, the FBI participated in the State's investigation
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of Smith's involvement in the Annapolis shooting, and it produced information related to its
assistance with that investigation from the 343G Assist File. However, the FBI refuses to produce
information from the separate and ongoing investigation into Ruiz, the 218C Investigation File.
As the FBI suggests, the Fourth Circuit's decision in Kasi v. Angelone, 300 F.3d 487 (4th
Cir. 2002), is instructive. 	There, Kasi was convicted in state court of charges arising out of the
shooting of CIA employees. Id at 490. The FBI participated in the investigation of those ~rimes.
See id. at 491. 	Prior to trial, the petitioner made a Brady-based Touhy request seeking from the
FBI documents related to the investigation of the petitioner's crimes and his subsequent
apprehension. Id. at 500. The FBI produced some of the documents requested and made an agent
available for questioning by the defense, but refused to comply with the subpoenas duces tecum. 3
Id. at 501. Separate from his criminal case in state court, Kasi filed a FOIA action in federal district
court to compel production by the DOJ and FBI, which argued information was properly withheld
'-'under a FOIA exception for 'investigatory files compiled for law enforcement purposes whose
release could reasonably be expected to interfere with enforcement proceedings."' 	Id. at 507
(quoting Kansi v. U.S. Dep't ofJust., 11 F. Supp. 2d 42, 43-44 (D.D.C.1998)). The district court
dismissed the FOIA case and Kasi did not appeal. Id.
However, through an appeal of a district court's denial ofKasi's later petition for a writ of
habeas corpus, the Fourth Circuit heard Kasi's challenge to the Virginia Supreme Court's rejection
of his "claim that his rights under Brady were violated by the trial court's refusal to enforce
subpoenas issued to the FBI." Id. at 504.. Kasi argued that his petition should have been granted
3 "A subpoena duces tecum is a document that requires the person or entity served with it to provide
requested documents or information in their possession." 	Yates v. Dir. of Nursing HDSP, No.
2:23-CV-02008-CDS-NJK, 2024 WL 3028337, at *4 (D. Nev. June 17, 2024) (italics added)
(citing Fed. R. Civ. P. 45).
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because "the Virginia Supreme Court's rejection of his Brady claim was contrary to or an
unreasonable 	application of Supreme Court precedent because, 	under such precedent, the
Commonwealth had a duty to i:eview the FBI files for Brady material notwithstanding the
sovereign immunity bar to the state trial court's enforcement authority."' Id. 	The Fourth Circuit
observed that Brady "created no general constitutional right to discovery in a criminal case," nor
did it establish "a right to rummage through governmental files." Id. The court concluded that the
petitioner "failed to establish a basis for his claim that the federal agency files contained material
evidence." Id. at 505. Further, the Fourth Circuit rejected the petitioner's argument that he was
"denied due process because ... the Commonwealth was required to conduct a Brady review of
the FBI's files in order to locate and produce any. exculpatory evidence that might exist within
them." Id. (emphasis in original). In sum, the Fourth Circuit effectively rejected a Brady challenge
to the refusal to enforce a Touhy request even where the FBI refused to disclose material that came
from the investigation of the petitioner's crimes and his apprehension.
To rebut the force of Kasi, Smith invokes Johnson v. Reno, 92 F. Supp. 2d 993, 995 (N.D.
Cal. 2000), in which a district court compelled certain federal agencies to produce the requested
materials pursuant to the AP A and Brady to a pJ-aintiff who was charged with "two counts of
homicide with special circumstances, and for which the State of California [was] seeking the death
penalty." Id. at 994. 	However, Johnson involved agencies that were "intimately involved in the
investigation which led to Plaintiffs arrest." Id. The Johnson Court reasoned that "[b]y virtue of
their participation in this investigation, these agencies may have in their possession information
• helpful to Plaintiffs defense." Id. 	Beyond that minimal context, however, the court in Johnson
I
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offered little explanation as to the nature of the agencies' involvement in the investigation.4
Moreover, the Johnson Court assumed that the materials the plaintiff sought were "relevant
materials that would, in a federal criminal trial, be discoverable under Brady[]" as the materials
"contain information that is either exculpatory or relates to the credibility of witnesses in the case
against him." Id at 995. 	The case at bar presents a difference 'scenario where the nature of the
materials sought is not so easily classified as Brady material. Moreover, the pla_intiff in Johnson
also established that the requested materials related "directly to, and effect [the Johnson plaintiffs]
defense in· the underlying criminal matter" and that the federal agencies at issue there had
"complied with information requests from the state prosecutor and law enforcement agencies and
yet refused to honor similar requests from [him] for relevant materials." Id 	Here, the FBI has
declined to provide materials to both the AAC-SAO and Smith alike. Further, Johnson is readily
distinguishable because the materials Smith seeks from the FBI now do not document the FBI's
"intimate[] involve[ment] in the investigation which led to Plaintiff's arrest." Id 	(emphasis
added). 	In fact, it appears uncontroverted that in providing materials from the 343G Assist File,
'
the FBI ensured that Smith received. the precise documentation at issue in Johnson, namely
materials that relate directly to Smith's criminal investigation and prosecution ..
In this case,, the FBI complied with the Touhy request insofar as it related to the FBI's
involvement in the investigation of Smith and the crime at issue. 	What the FBI did• not do,
however, was disclose material related to the ongoing investigation of one of Smith's victims, an
investigation which existed independent of Smith's alleged criminal acts and wholly separate from
4 The bulk of the Johnosn opinion estabiishes the uncontroversial fact that an AP A action in fed.era!
court is "in fact the proper means for challenging a federal agency's refusal to produce information
to a criminal defendant in state court." Johnson, 92 F. Supp. 2d at 994 (citing United States v.
Williams, 170 F.3d 431,434 (4th Cir.1999)).
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the State's request for the FBI's assistance in investigating such acts. Smith argues that "[i]f State
prosecutors and police can voluntarily enlist federal agencies to assist with its case, and those
federal agencies can unilaterally withhold potentially exculpatory information while a man stands
trial for his life, then Brady is effectively eviscerated." ECF 37-1, at 15. But Smith overlooks the
fact that the FBI did provide information related to its assistance and involvement with the State's
investigation into Smith and the shooting .. And Smith points to no evidence on this record "that
the FBI somehow used its status as a joint investigator to shield exculpatory information." 	Cf
Rimmer v. Holder, 700 F.3d 246,259 (6th Cir. 2012). Accordingly, the Court concludes that the
FBI did not violate any of Smith's Sixth Amendment rights in its partial denial of his Touhy request
and, indeed, satisfied any obligations under Brady by disclosing information related to its
investigation of Smith to both the AAC-SAO and Smith.
Furthermore, the Government is right to draw the Court's attention to the "utility of the
information Smith seeks." 	ECF 33-1, at 18. 	Smith's Touhy request itself reflects that the
information was requested in part because he was "claiming self-defense against violent gang
members in this case." ECF 28-1, at 26. 	The existence of and information related to a "hit" on
his life weeks after the shooting, however, has limited tendency to show whether Smith believed
himself to be "in apparent imminent or immediate danger of death or serious bodily harm from his
assailant or potential assailant" at the time of the shooting. 	See Porter v. State, 166 A.3d 1044,
1053 (Md. 2017) (describing the requirement of subjective belief in such danger as a requirement
of both perfect and imperfect self-defense under Maryland law). 	To be sure, the existence of a
subsequent coordinated effort by the Mireles family to violently retaliate against Smith might
bolster the validity of Smith's assertion that ·Ruiz associated with people who had a propensity for
violence. 	It does little, however, to assist the jury in fir,ding the key question of what was on
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Smith's mind at the time of the mass shooting. 	Stated differently, the person whose "known
propensity for violence" is relevant to Smith's self-defense argument is Ruiz. 	ECF 33-1, at 19.
The requested information does not address Ruiz's propensity for violence and thus arguably falls
outside the boundaries of Brady because of it.
2. 	The FBI's decision on Smith's Touhy request was not arbitrary and capricious
under the AP A.
To the extent a litigant seeks to challenge the government's refusal to comply with a
subpoena, "such a challenge is both available and proper under the AP A because sovereign
immunity is waived as to federal agencies under the APA." 	See Smith, 766 F. Supp. 3d at 510
(quoting COMSAT Corp., 190 F.3d at 574). 	As the Court previously noted, Smith is entitled to
challenge the decision of the FBI to deny his Touhy request for information related to the 281 C
Investigation File under the APA. See id at 511 (first citing Williams, 170 F.3d at 434; and then
citing COMSAT Corp., 190 F.3d at 274). And as discussed, the Court's review is confined to the
administrative record. See supra Section III.A.
To reiterate, "[t]he scope ofreview under the 'arbitrary and capricious' standard is narrow
and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of
the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). "Nevertheless,
the agency must examine the relevant data and articulate a satisfactory explanation for its action
including a 'rational connection between the facts found and the choice made."' 	Id (quoting
Burlington Truck Lines, 371 U.S. at 168. 	"In reviewing that explanation, we must 'consider
whether the decision was based on a consideration of the relevant factors and whether 'there has
been a clear error of judgment."' 	Id (quoting Bowman Transp., -Inc. v. Arkansas-Best Freight
System, Inc., 419 U.S. 281, 285 (1974)). 	The Court "may not supply a reasoned basis for the
agency's action that the agency itself has not given," but the Court will "uphold a decision ofless
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than ideal clarity if the agency's path may reasonably be discerned:" Id. (quoting Bowman, 419
U.S. at 286). 	For the reasons to follow, the Court is satisfied the FBI's partial denial of Smith's
Touhy request had a reasoned basis and thus was not arbitrary and capricious in violation of the
APA.
Smith requested two types of information from the FBI. See ECF 28-1, at 26. First, Smith
requested "[a]ny and all information regarding _the hit put out by the Mireles family and their
. associates on Charles Robert Smith," which Smith claimed to have knowledge of based on "a call
from a-special agent (unnamed)" to another investigator on or about June 23, 2023, in the aftermath
of the shooting, "stating that a reliable source had provided information to him/her that the Mireles
family and its associates were collecting money to finance a hit" on Smith. 	Id. 	Second, Smith
requested "[a]ny and all information regarding the association, participation and/or membership"
of Ruiz, among other members of the Mireles family and their alleged associates, "in MS-13, any
Mexican cartel, and/or any criminal organizations known to operate within MS-13 and any
Mexican cartel." 	Id. 	Smith's request explained that he believed the information to be "Brady
material insofar as it may serve, whether or not admissible, to exculpate [ ] Smith or negate or
mitigate [] Smith's guilt or punishment as to some or all of the offenses charged" because "Smith
•is claiming self-defense against violent gang members in this case." Id.
In response to Smith's request, the FBI sent a letter explaining that, subject to certain terms
and conditions "the requested disclosure of the FBI's documents from FBI #343G-BA-3773068
has been authorized" but that the "production of materials, documents, or information from FBI
#281C-BA-3708548" and the testimony ofrelated special agents were not authorized. ECF 28-1,
at 49. The letter explained that the authorization did "not extend to any information or documents
that may compromise any ongoing federal criminal investigation" nor "the identity of or
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information indicating the identity of confidential sources or informants." 	Id 	It also described
that "investigative techniques, target names, informant names, witnesses, [and] defendants,"
among other things, were not included, nor any privileged information, including disclosures
related to the "internal deliberation process" of the FBI, "information that would threaten or
endanger the lives or safety of any individual," and disclosures "that could interfere with ongoing
criminal investigations or prosecutions, or reveal investigative or intelligence gathering and
dissemination techniques, the effectiveness of which would thereby be impaired." Id at 49-50.
Smith's defense attorney sent a follow up letter indicating that she did not believe the
information produced· was responsive to the Touhy request because the materials provided were
"related to the FBI, ATF and Annapolis Police Department investigation of the June 11, 2023
shooting that is the subject of this case" rather than specific information related to Ruiz's
involvement in potential criminal drug activity and the alleged hit put out on Smith. ECF 28-1, at
51. The FBI responded with another letter, reiterating that "the Department of Justice has denied
your Touhy request because of the concerns that disclosing such information may compromise an
ongoing criminal investigation or disclose the identity of confidential source(s)." Id. at 53.
Smith argues that "[t]he FBI failed to consider the relevance of the sought after information
to. [] Smith's defense and it failed to substantially articulate the reason for the denial." ECF 37-1,
at 11. 5 	However, the FBI's letter articulating its rationale, in addition to its follow-up letter,
identify a reasoned basis for its decision on the Touhy request. First, with respect to information
existing on Ruiz and other Mireles family members or associates, the FBI stated that it could not
5 The Court observes that the majority of Smith's memorandum in support of his cross-motion for
summary judgment and in opposition to the FBI's motion focuses 	on advancing a Sixth
Amendment constitutional challenge pursuant to 5 U.S.C. § 706(2)(B), ECF 37-1, at 12-19, rather
than an arbitrary and capricious challenge under§ 706(2)(A), id. at 9-12 .
. 23
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authorize disclosure of any existing information that interfered or threatened an ongoing criminal
investigation, among other reasons. See ECF 28-1, at 49, 53. The governing regulation provides
that disclosure will not be made where certain factors exist, including where "[d]isclosure would
reveal investigatory records compiled for law enforcement purposes, and would interfere with
enforcement proc~edings or disclose investigative techniques and procedures the effectiveness of
which would thereby be impaired." 28 C.F.R. § 16.26(b)(5). Because the FBI's investigation into
Ruiz and his alleged criminal drug activity were and remairi ongoing, the FBI was obligated to
prohibit disclosure of information that would interfere with that investigation. Nevertheless, the
FBI produced four redacted reports from the 281C Investigation File that predated Ruiz's death
containing responsive information regarding Ruiz's alleged involvement in criminal drug activity. 6
ECF 28-1, at 12-23. 	These documents include reference to the fact that in "August 2022,
investigators began to receive information" that Ruiz was "selling cocaine . in and around
Annapolis." Id. at 13. In addition, the documents reflect that Ruiz was "often seen with a variety
of handguns and long guns." Id. 	The FBI's conclusion that Ruiz's death permitted the release of
6 The FBI made these productions in response to the AAC-SAO's prior Touhy request, which
specified that its request was made with the purpose of disclosing information to Smith for use in
his defense pursuant to Maryland Rule 4-263(d)(5). See ECF 28-1, at 6. "[B]ecause the FBI and
USAO had already undertaken a review of the 281 C Investigation file for materials relating to
gang affiliations for Ruiz, the FBI refused to indulge Smith's request to do so again." ECF 33-1,
at 17. Smith received this information through the AAC-SAO's disclosure, and he does not appear
to take issue with the channel through which the disclosure occurred. See, e.g., ECF 37-1 ("The
defense submitted a Touhy request seeking records and communications between the FBI and local
law enforcement concerning threats to Mr. Smith's life, including the cartel-ordered hit and any
gang affiliations of the victims. In response, the FBI produced only a handful of documents,
comprising five sentences of substance, with multiple pages left entirely blank and presumably
entire reports left out of the disclosure. A.R 8-19."). Put differently, Smith's challenge focuses on
what information was not disclosed, rather than the means of disclosure for the information that
was provided.
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this limited information as it no longer compromised an ongoing drug investigation reflects a
reasoned decision, consistent with the FBI's obligations under the Code of Federal Regulations.
Second, the FBI's response to Smith's request for information related to any "hit" put on
his life while he was in jail by the Mireles family also had a reasoned basis. 	28 C.F.R. § 16.26
prohibits disclosures that would "reveal a confidential source or informant, unless the investigative
agency and the s.ource or informant have no objection." 	28 C.F.R. § 16.26(b)(4). 	As Smith's
request itself reflected, the information about the alleged "hit" came from an unnamed "reliable
source." 	See ECF 28-1, at 26; see also id. at 34 (email from FBI Special Agent noting that "a
reliable source ... said the Mireles family and associates are getting money together to p_ut a hit
out on Charles Smith in jail"); id. at 35 (FBI record reflecting that an "FBI Confidential Human
Source" provided information about the alleged "hit" on Smith). The administrative record thus
supports a "rational connection between the facts found and the choice made" by the FBI to
withhold additional information about the hit, as whatever additional information even existed
implicated the identity of a confidential informant. 	See Motor Vehicle Mfrs. Ass 'n of US., Inc.,
463 U.S. at 43 (quoting Burlington Truck Lines, 371 U.S. at 168).
The FBI's decision regarding Smith's Touhy request would be "arbitrary and capricious 'if
the agency has relied on factors which Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise."' 	RLI Ins. Co. v. Nexus Servs., Inc., No.
5:18-CV-00066, 2020 WL 1496466, at *2 (W.D. Va. Jan. 17, 2020) (quoting Motor Vehicle Mfrs.
Ass 'n of US., Inc., 463 U.S. at 43). To the contrary, the administrative record here establishes that
the FBI made its denial in accordance with the applicable Touhy regulations and articulated reasons •
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in two responsive letters that support a finding that it considered the request in the manner required
by law. Accordingly, this Court must defer to the agency's reasoned judgment, in recognition that
"federal judges-who have no constituency-have a duty to. respect legitimate policy choices
made by those who do." Jnre Subpoena to Nat'/ Sci. Found., 2018 WL 5017612, at *2 (quoting
COMSAT Corp., 190 F.3d at 278). 	The _Court therefore concludes that the FBI's decision on
Smith's Touhy request did not violate the APA.
IV. 	CONCLUSION
For the foregoing reasons, Smith's motion to supplement, ECF 31, is denied, the FBI's
motion for summary judgment, ECF 33, is granted, and Smith's cross-motion for summary
judgment, ECF 37, is denied.
A separate implementing order will issue.
Dated: January 13, 2026 	Isl
Brendan A. Hurson
United States District Judge
11
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