Closing the Oglesby Loop and Limiting FOIA’s Law-Enforcement Exemptions: Third Circuit Bars “Federalization” of State Task Forces and Narrows 7(D) and 7(E) in Viola v. DOJ

Introduction

In a precedential decision, the Third Circuit in Anthony L. Viola v. United States Department of Justice et al. addresses three enduring pressure points in Freedom of Information Act litigation: (1) who counts as an “agency” under FOIA; (2) what makes a records search “adequate”; and (3) how far law-enforcement exemptions reach, especially where privacy, confidential sources, and investigative techniques are invoked. The case arose from parallel state and federal mortgage-fraud prosecutions of Anthony Viola, culminating in a mixed verdict—federal convictions but a full state-court acquittal—followed by Viola’s efforts to uncover alleged governmental misconduct via FOIA requests to the FBI and the Executive Office for United States Attorneys (EOUSA).

When neither federal component produced records within FOIA’s timelines, Viola sued in the Western District of Pennsylvania (where he was incarcerated), later amending to add the local Cuyahoga County Mortgage Fraud Task Force (Task Force) and a witness. The district court dismissed the Task Force for lack of personal jurisdiction and ultimately granted summary judgment to the FBI and EOUSA. On appeal, the Third Circuit affirms in part and vacates in part, offering important doctrinal refinements with practical consequences for FOIA processing, Vaughn submissions, and the handling of law-enforcement materials.

Summary of the Opinion

Task Force dismissed for lack of personal jurisdiction: The Third Circuit affirms, rejecting Viola’s attempt to treat the county Task Force as a “federal agency” under FOIA based on federal funding and cooperation. FOIA’s definition does not federalize state/local entities through oversight or grants; Forsham’s narrow possibility for private grantees under day-to-day federal supervision does not extend to governmental units.
EOUSA’s search upheld; FBI’s search partly deficient:
- EOUSA’s search locations and methods were adequate (and even exceeded requirements given the vagueness of Viola’s request about “his company” without naming it).
- FBI did not “close the Oglesby loop” on locations: searching only the Central Records System (CRS) without stating that no other likely locations exist fails Oglesby’s “all likely” standard. Its methodology was also unreasonable for Viola’s request for records “regarding” witness Dawn Pasela’s death (not limited to records indexed by Viola’s name).
Exemptions 6 and 7(C): The Court largely approves the agencies’ categorical and record-by-record approaches but finds several specific applications by EOUSA unjustified, creating an important disclosure tilt for trial exhibits designated by the government:
- Government-designated trial exhibits: Where the government identified exhibits for a public trial, the privacy balance in Exemptions 6 and 7(C) tilts toward disclosure; the agency must show both non-use at trial and that non-use was for privacy—not strategy—to withhold.
- Defense-designated exhibits treated as agency records: EOUSA did not provide enough information to balance privacy against the public interest; withholdings vacated.
- Ethics grievance correspondence: Redaction of personal data was proper, but redaction of the signatory’s name from Ohio’s Office of Disciplinary Counsel requires more detail; if the signatory was a public officeholder, privacy is minimal and disclosure favored.
- Witness statements: No blanket withholding under 6/7(C); “inextricably intertwined” assertions are insufficient without context and segregability analysis.
- The FBI’s specific redactions to one interview note were adequately justified under 6/7(C).
Exemption 7(D) (confidential sources): The FBI’s “singularity-of-information plus disastrous consequences” theory for implied confidentiality is not “FOIA workable” without more detail. Absent express assurances, the Bureau must substantiate implied confidentiality—often via in camera submissions—beyond conclusory statements. The FBI’s 7(D) withholdings and segregability determinations are vacated.
Exemption 7(E) (techniques and procedures): The FBI cannot use 7(E) to withhold the results of NCIC searches. Querying NCIC is a well-known technique; the results are not themselves “techniques or procedures.” Concerns about tipping off targets should be addressed under 7(A), which the FBI did not assert. The withholdings are vacated for failure to justify and to segregate.
District court’s opinion adequacy: Any explanatory deficiency is harmless under de novo appellate review.
Disposition: Affirmance of Task Force dismissal. EOUSA summary judgment affirmed as to search adequacy; vacated as to specific 6/7(C) withholdings (trial exhibits, disciplinary correspondence, witness statements). FBI summary judgment affirmed in limited respects (certain 6/7(C) redactions); otherwise vacated for search adequacy (locations; Pasela-death methodology) and for 7(D) and 7(E) withholdings. Remand permits renewed motions and further development (including revised searches, explanations, segregability, and potential in camera filings).

Analysis

Precedents Cited and Their Influence

Forsham v. Harris (445 U.S. 169) and United States v. Orleans (425 U.S. 807): The Court cabins Forsham’s suggestion that private grantees under “day-to-day” federal supervision might, in rare cases, be deemed FOIA agencies. It refuses to extend this “loophole” to state and local governmental entities, aligning with Orleans’s reminder that federal funding and assistance do not create federal agencies. This anchors the holding that the county Task Force is not a FOIA “agency,” preserving federalism and FOIA’s text-bound scope.
Oglesby v. Army (920 F.2d 57) and Third Circuit adoption in Abdelfattah (488 F.3d 178): The Third Circuit reaffirms Oglesby’s two-part adequacy test: search all locations “likely” to have responsive records, and use methods “reasonably calculated” to find them. The opinion stresses that “most likely” is not enough; agencies must “close the loop” and say no other likely locations exist—or explain why further searches are unlikely to yield marginal returns (Campbell). The FBI fell short on location scope and on tailoring methodology to Viola’s “Pasela death” request.
Constructive control line (CEI v. OSTP; Burka): While the FBI raised collateral estoppel from a D.D.C. case about Task Force records, the Third Circuit needed no preclusion ruling: the FBI still had to close the Oglesby loop as to its own systems and did not.
Privacy balancing (Exemptions 6, 7(C)): Reps. Committee; FLRA; IBEW; Sheet Metal Workers: The Court applies the familiar balance: privacy vs. the public interest in understanding agency operations. It adds a fresh gloss for government-designated trial exhibits: the government’s pretrial decision to list exhibits for a public proceeding suggests its own prior balancing favored disclosure. The agency must overcome that tilt by showing non-use and that the non-use rested on privacy—not strategy.
Vaughn practice (Vaughn v. Rosen; Coastal States; Davin; Campbell): EOUSA’s itemized index is praised; the FBI’s categorical approach is approved where categories are specific and correlated to documents. The opinion enforces that conclusory statements (e.g., “inextricably intertwined”) do not suffice for withholding in full; meaningful review requires context and segregability analysis.
Exemption 7(D) (Landano; Davin): The Supreme Court in Landano rejected presumptive confidentiality for FBI sources. Implied assurances can be inferred from the character of the crime or the source’s relationship to it. The Third Circuit calls these “FOIA workable” because they can be justified without compromising protected information. By contrast, the FBI’s “singularity + disastrous consequences” theory requires more facts and often warrants in camera submissions; unsupported generalities are insufficient.
Exemption 7(E) (Davin; Ferri; Blackwell; Robbins Tire): The Court reiterates that 7(E) covers non-routine techniques or procedures, or investigative guidelines where disclosure risks circumvention of the law. It holds that NCIC querying is a known technique and the results are not itself a technique. If the concern is alerting subjects to investigations, Exemption 7(A) is the correct tool. The Third Circuit also adheres to its own precedent that the “risk of circumvention” requirement applies to the techniques-and-procedures prong, noting other circuits apply it only to guidelines.

Legal Reasoning

1) FOIA “Agency” and Personal Jurisdiction

Viola sought to use FOIA’s agency-suit provision to bootstrap personal jurisdiction over the local Task Force by arguing it was a federal “agency” due to funding and cooperation with DOJ components. The Court reads FOIA’s statutory definition (incorporating the APA plus FOIA’s additions) as confined to federal executive entities (departments, independent agencies, government corporations, etc.). Extending Forsham’s narrow private-grantee conception to state/local governmental units would blur federal-state lines and lacks textual support. Because the Task Force is not, and cannot be deemed, a FOIA “agency,” the supposed statutory authorization for nationwide service/jurisdiction never comes into play. With no Pennsylvania contacts shown, personal jurisdiction fails and dismissal is affirmed.

2) Adequacy of Searches

Oglesby’s two-prong framework drives the analysis:

Locations: EOUSA reasonably searched its prosecutorial case file, FOIA storeroom, electronic folders, and databases. The FBI limited itself to the CRS but only said responsive records “would reasonably be expected” to be there—i.e., the “most likely” place—without stating that no other likely locations exist. That failure to “close the loop” violates Oglesby’s “all likely” requirement.
Methods: EOUSA’s methods were reasonable; moreover, Viola’s request for records about “his company” did not identify the company, rendering that portion insufficiently specific. The FBI’s indexing-by-name approach was reasonable for requests expressly limited to records mentioning Viola. But for records “regarding” Pasela’s death (not limited to indexing by Viola’s name), the FBI needed to broaden its method beyond name-indexed files. It did not.

3) Exemptions 6 and 7(C): Privacy

The Court finds the agencies generally provided sufficient, reviewable justifications via Vaughn indices and declarations (including appropriate use of subject-matter categories by the FBI). But several specific applications are rejected:

Government-designated trial exhibits: Because the government previously prepared to disclose these exhibits at a public trial, the privacy balance is tilted toward disclosure. To withhold under 6/7(C), EOUSA must prove the exhibit was not used and that trial non-use was for privacy reasons—not strategic considerations. EOUSA did not make that showing.
Defense-designated exhibits treated as agency records: EOUSA did not provide enough context to perform the privacy/public-interest balance. Withholdings vacated.
Ethics complaint and Disciplinary Counsel letters:
- Personal identifiers (address, DOB, phone) in Viola’s grievance are properly redacted: minimal public interest in agency operations is served by disclosure, while personal privacy interests are significant.
- But the name/signature of the Ohio Disciplinary Counsel letter’s signatory cannot be withheld without clarifying whether the signatory is a public officeholder (whose privacy interest is low) or a staff member (greater privacy interest). EOUSA’s record is insufficient.
Witness statements/interviews: EOUSA’s conclusory “inextricably intertwined” rationale for withholding fifteen statements in full is inadequate. There is no categorical FOIA rule allowing blanket withholding of witness statements under 6/7(C); contextual privacy-harm explanations and segregability are required.
FBI interview notes: Viola’s targeted challenge fails; the FBI showed the redactions guard personally identifying information of agents, sources, victims, or third parties, satisfying 6/7(C).

4) Exemption 7(D): Confidential Sources

The FBI asserted only implied assurances of confidentiality, not express ones. Landano permits implication where the character of the crime or the source’s relation to it makes confidentiality reasonable—approaches the Court dubs “FOIA workable” because they avoid exposing protected information. The FBI instead posited that certain information was so singular that revealing it would identify the source and that consequences would be “disastrous.” The Court holds this “singularity + consequences” theory demands substantially more detail—often via in camera affidavits—because singularity can be assessed only by knowing, at least in general terms, how many potential sources exist and why only one could be inferred. Likewise, the nature and source of the risk must be described. The FBI provided none of that (e.g., it did not even specify how many confidential sources it claims). The 7(D) withholdings and segregability determinations therefore fail.

5) Exemption 7(E): Techniques and Procedures

The FBI invoked 7(E) to withhold NCIC search results, arguing disclosure would let individuals deduce which agency queried and when. The Court draws a bright doctrinal line:

7(E) protects non-routine techniques or procedures, and investigative guidelines whose disclosure risks circumvention of the law. Querying NCIC is widely known and routine; the results of such queries are not “techniques” or “procedures.”
Concerns about tipping off targets belong under 7(A) (interference with enforcement proceedings), which the FBI did not invoke for these 2009 records.
Because the FBI relied only on 7(E) and did not perform segregability analysis, its withholdings are vacated.
As a doctrinal note, the Third Circuit, consistent with its precedent (Davin) and the D.C. Circuit (Blackwell), treats the “risk of circumvention” requirement as applying to the techniques-and-procedures prong as well as the guidelines prong, acknowledging other circuits limit that requirement to guidelines.

Impact

FOIA “Agency” Boundaries: State and local task forces—even those with heavy federal participation and funding—are not FOIA “agencies.” Requesters cannot use FOIA to compel production from such entities or to bootstrap federal personal jurisdiction over them. Expect similar outcomes for joint state-federal initiatives unless a true federal component holds or controls the records.
Search Adequacy—The “Close the Loop” Rule: The Third Circuit strengthens Oglesby by requiring explicit closure: agencies must either (a) search all likely systems, or (b) explain why no other systems are likely to contain responsive records. Saying “we searched the most likely place” is insufficient. This will prompt broader or better-justified search plans and more precise declarations.
Tailored Methods to the Request: When a requester asks for records “regarding” a subject without limiting to the requester’s name index, name-only searches are inadequate. Agencies must tailor methods to the request’s natural scope.
Privacy Exemptions and Trial Exhibits: The “government-designated exhibit” tilt toward disclosure is a notable practical rule. Prosecutors and FOIA officers should anticipate that once the government has queued materials for public trial use, Exemptions 6/7(C) will be harder to sustain absent a clear privacy-driven non-use rationale.
No Categorical Withholding of Witness Statements Under 6/7(C): Agencies must provide contextual privacy-harm analysis and demonstrate reasonable segregability; rote “inextricably intertwined” assertions will not do.
7(D) Proof Demands: When relying on implied confidentiality not grounded in crime character or source relation, agencies should expect to supply more detail—often in camera—about singularity and risks. Declarations should identify, at minimum, the number of sources and why the information would uniquely identify them.
7(E) Narrowed for NCIC Outputs: Agencies may not stretch 7(E) to cover the outputs of well-known tools. If the risk is alerting subjects, 7(A) is the proper exemption. Expect more granular segregability of NCIC and similar database printouts, with possible strategic shifts to 7(A) when investigations remain live.
Vaughn and Segregability Expectations: The opinion endorses categorical indices when specific and correlated, but it underscores the need for document-level clarity on what is withheld and why, along with explicit segregability analysis—especially when documents are withheld in full.
District Court Practice: Although appellate de novo review can cure sparse district-court explanations, Coastal States’ supervisory guidance remains good practice. District courts may wish to provide more explicit exemption-by-exemption rationales to reduce remand risk.

Complex Concepts Simplified

FOIA “Agency”: FOIA covers federal executive entities and components. It does not cover state or local governments or their task forces, even if federally funded or closely coordinated with federal agencies.
Vaughn Index: An itemized list mapping each withheld/redacted record (or category) to the specific FOIA exemption and rationale, enabling adversarial testing and judicial review.
Oglesby “Loop”: To prove an adequate search, an agency must show it searched all locations likely to have responsive records—either by searching them or by explaining why no other likely locations exist. Stopping at the “most likely” place leaves the loop open.
Constructive Control: An agency must search records under its legal control even if not physically possessed. This is fact-intensive and cannot be used to avoid searching likely agency systems.
Segregability: Even when parts of a record are exempt, non-exempt portions must be released if reasonably segregable. Withholding an entire document requires a specific explanation of why nothing can be segregated.
Exemptions 6 and 7(C): Protect privacy in general (6) and in law-enforcement materials (7(C)). Courts balance personal privacy against the public interest in learning how the government works; the balance is more protective under 7(C).
Exemption 7(D): Protects confidential sources and the information they provide in criminal investigations. Confidentiality can be express or implied; implied requires specific, demonstrable circumstances—not mere labels.
Exemption 7(E): Protects non-routine investigative techniques and procedures, and investigative guidelines where disclosure risks circumvention of the law. It does not cover the routine, well-known techniques themselves—or their outputs—absent special circumstances.
Exemption 7(A): Allows withholding of law-enforcement records if releasing them could interfere with ongoing or prospective enforcement proceedings, including investigations.
“FOIA workable” proofs: Justifications that can be assessed without forcing the agency to reveal the very information it needs to protect. Courts favor such proofs to keep the process fair and functional.

Conclusion

Viola v. DOJ is a significant FOIA decision on multiple fronts. It solidifies that FOIA does not “federalize” state or local task forces through funding or cooperation, preserving a clear boundary around who must respond to FOIA. It tightens the adequacy-of-search standard by insisting agencies “close the Oglesby loop,” and it demands tailored search methods aligned with the breadth of the requester’s phrasing. On exemptions, the Court introduces a consequential disclosure tilt for government-designated trial exhibits under Exemptions 6 and 7(C), rejects blanket withholding of witness statements absent contextual justifications and segregability, and raises the evidentiary bar for implied confidentiality under 7(D) when agencies rely on singularity arguments. Finally, it constrains 7(E) to genuine techniques and procedures, not to the routine outputs of well-known tools like NCIC, steering agencies toward 7(A) when the real concern is investigative sensitivity.

On remand, the FBI and EOUSA must provide fuller explanations, perform (and document) broader and better-tailored searches, and undertake genuine segregability assessments. For FOIA practitioners and agencies alike, the opinion offers a roadmap: be precise about where you looked and why; align your methods with the request; justify privacy with context, not boilerplate; treat confidential-source claims with the rigor Landano requires; and resist stretching 7(E) beyond its text. The decision thus advances transparency while preserving legitimate law-enforcement and privacy interests through careful, workable standards.