Court of Appeals Finds FBI Withheld Key Evidence in Tony Viola’s Criminal Case and Failed to Properly Search for records concerning Dawn Pasela
  • The FBI failed to properly search for or improperly withheld critical evidence related to the late Dawn Pasela, the Office Manager for the Mortgage Fraud Task Force, and documents related to the prosecution of Tony Viola
  • The appellate court remanded the matter to the lower court for further proceedings, directing additional review of evidence handling and FBI search efforts.
  • The Yale Law School Appellate Clinic and Attorney Kim Corral collaborated on the appellate brief that brought the new evidentiary issues to light.
  • At the center of the litigation are voice recordings made by Dawn Pasela, which are alleged to contain material exculpatory evidence that was not disclosed during Viola’s trial, and the firing and disbarment of former federal prosecutor Mark Bennett, who prosecuted Viola and supervised Pasela’s work during the investigation.

 

The U.S. Court of Appeals for the Third Circuit’s November 3, 2025 decision in Anthony L. Viola v. U.S. Department of Justice, et al., Case No 22-2186, reversed and remanded the District Court’s grant of summary judgment to the Department of Justice’s Executive Office for U.S. Attorneys (EOUSA) and the Federal Bureau of Investigation (FBI). The appellate court found several critical errors in the lower court’s acceptance of the agencies’ handling of Freedom of Information Act (FOIA) requests and in its evaluation of their exemptions and search adequacy. The Third Circuit’s reasoning focused on procedural flaws, inadequate factual support, and misapplication of FOIA’s statutory standards.

1. Failure to Ensure Adequate FBI Search under FOIA

A major reason for reversal was the court’s conclusion that the FBI’s search for responsive records did not meet the required FOIA standard of adequacy. Under the well-established Oglesby v. U.S. Department of the Army (D.C. Cir. 1990) test—adopted in the Third Circuit—the government must demonstrate that it (1) searched all record systems “likely” to contain relevant information and (2) used methods “reasonably calculated” to locate responsive materials.

The FBI had limited its search to its “Central Records System,” asserting that it was the most likely repository for relevant materials. The Third Circuit found this inadequate because the Bureau failed to “close the loop” by affirmatively demonstrating that no other systems were likely to contain relevant information. Simply saying the Central Records System was “most likely” to have the records was insufficient. The FBI also failed to justify why other record databases or field office files were not searched, especially considering that its investigation had been conducted jointly with the Cuyahoga County Mortgage Fraud Task Force.

Additionally, the FBI’s search methodology was found deficient regarding Viola’s request for records relating to the death of Dawn Pasela, the former Task Force office manager who worked for prosecutors Daniel Kasaris and Mark Bennett and who allegedly possessed exculpatory information. Viola’s FOIA request for “records regarding Pasela’s death” was broader than other requests, yet the FBI used the same narrow search terms (focusing only on Viola’s name). The Bureau’s explanation—that if such records existed, they would be indexed under Viola’s name—was deemed conclusory and unsupported. The court ruled that such a limited approach could not be considered “reasonably calculated” to locate all responsive records.

2. Inadequate Justification of FBI’s Exemptions under FOIA § 552(b)(7)(D) and (7)(E)

The Third Circuit also reversed because the FBI failed to justify its use of two major law-enforcement-related FOIA exemptions—§ 552(b)(7)(D) (confidential sources) and § 552(b)(7)(E) (law enforcement techniques).

  1. Exemption 7(D) – Confidential Sources

The FBI had redacted or withheld thousands of pages based on Exemption 7(D), claiming that revealing certain information could expose confidential sources or their communications. However, the court ruled that the Bureau had not demonstrated that those sources were actually confidential. Under the Supreme Court’s decision in U.S. Department of Justice v. Landano (1993), confidentiality may only be presumed if the government provides evidence of either (1) an express assurance of confidentiality or (2) circumstances justifying an implied assurance of confidentiality.

Here, the FBI provided only vague, conclusory statements claiming that disclosure could have “disastrous consequences” and that the information was “singular” to specific sources. The Third Circuit criticized this “singularity-plus-consequences” theory as unworkable and insufficiently supported. The Bureau provided no evidence—such as in camera declarations—showing that the information was unique to a single identifiable source or that specific retaliation threats existed. Without such evidence, the Bureau failed to meet its burden of proof. Consequently, the court vacated all withholdings under Exemption 7(D) and remanded for further substantiation.

  1. Exemption 7(E) – Law Enforcement Techniques and Procedures

The court also rejected the FBI’s reliance on Exemption 7(E) to withhold National Crime Information Center (NCIC) database search results. The Bureau had argued that revealing these search results could expose which agencies were investigating a person and when, thereby risking circumvention of the law. The Third Circuit held that this reasoning improperly stretched the exemption’s scope. The NCIC system and the fact that law enforcement queries it are well-known public practices—routine investigative tools that do not qualify as “techniques or procedures” under § 552(b)(7)(E).

The court noted that Congress intended Exemption 7(E) to protect only non-public investigative methods or internal guidelines whose disclosure could enable evasion of the law. If the FBI wished to withhold records to avoid alerting suspects about ongoing investigations, the appropriate exemption would have been 7(A) (interference with enforcement proceedings), which the Bureau had not invoked. Because 7(E) does not cover the mere results of well-known database searches, the court vacated the Bureau’s withholding of these records in full.

3. EOUSA’s Improper Withholdings under Exemptions 6 and 7(C)

The Third Circuit also reversed in part due to EOUSA’s overbroad application of the privacy-based exemptions (Exemptions 6 and 7(C)). While these provisions protect personal information that would constitute an “unwarranted invasion of privacy,” the court found that EOUSA applied them too broadly and without adequate balancing against the public interest in disclosure.

The court specifically held that EOUSA’s justifications were insufficient for:

  • Trial exhibits marked for use in Viola’s prosecution. Documents designated as government trial exhibits were presumptively public, and EOUSA failed to show they were withheld for genuine privacy reasons rather than trial strategy.
  • Correspondence with Ohio disciplinary authorities regarding a grievance Viola filed against his attorney. EOUSA redacted the name and signature of a public disciplinary counsel official without establishing a meaningful privacy interest.
  • Witness statements and interviews withheld in full under blanket privacy claims. The court rejected EOUSA’s conclusory assertion that such materials were “inextricably intertwined” with private information. FOIA requires specific justifications and partial disclosure of segregable information whenever possible.

In all three areas, EOUSA failed to meet its statutory burden under 5 U.S.C. § 552(a)(4)(B) to justify each withholding with detailed, document-specific reasoning.

4. Harmless Error on Other Grounds, but Partial Remand Required

The Third Circuit acknowledged that some of Viola’s challenges lacked merit—such as the adequacy of EOUSA’s searches and certain FBI redactions under Exemptions 6 and 7(C)—but held that these errors did not cure the broader deficiencies. The court emphasized that FOIA places the burden entirely on agencies, not requesters, to prove their actions are justified.

Accordingly, the appellate court vacated and remanded portions of the judgment to require the FBI and EOUSA to:

  • Conduct broader and better-documented searches (especially regarding Pasela’s death);
  • Provide new or supplemental Vaughn indexes explaining exemptions; and
  • Release improperly withheld records unless exemptions can be substantiated with specific, factual evidence.

Conclusion

The Third Circuit reversed the lower court because it accepted incomplete, conclusory, and overbroad assertions by the FBI and EOUSA in violation of FOIA’s transparency standards. The agencies failed to perform adequate searches, overextended law enforcement and privacy exemptions, and neglected their obligation to justify withholdings through detailed, specific, and non-generic explanations. The decision reaffirms that federal agencies bear a heavy burden of proof in FOIA litigation and cannot rely on vague claims of confidentiality or national security to evade disclosure. The ruling also underscores judicial vigilance in ensuring that public access to government records is not undermined by bureaucratic secrecy or procedural shortcuts, and clarifies the standards for federal FOIA compliance and judicial review. It underscores that agencies must perform comprehensive, well-documented searches and cannot rely on generic justifications for broad withholdings. It also reinforces the principle that local law enforcement collaborations with federal agencies do not automatically become “federal agencies” under FOIA, preserving federalism boundaries.  Ultimately, however, the ruling exemplifies careful appellate scrutiny of FOIA transparency obligations while reaffirming procedural fairness for incarcerated or pro se litigants seeking government accountability.

To read the full opinion, kindly consult the Evidence Locker on the www.FreeTonyViola.com website.  To learn more about the suspicious death of whistleblower Dawn Pasela, please visit www.JusticeForDawn.com.

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