American Association of Women, Inc. v. U.S. Department of Justice , 167 F. Supp. 3d 136 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
AMERICAN ASSOCIATION )
0F WOMEN, INC. )
)
Plaintiff )
)
v. ) Case l4-cv-2l36-RCL
)
U.S. DEPARTMENT OF JUSTICE )
)
Defendant )
)
MEMORANDUM OPINION
Now before the Court are defendant’s motion for summary judgment and plaintiffs
cross-motion for summary judgment, the oppositions, and the replies thereto. ECF Nos. l4, 17,
l8, 22, 23, & 25.
For the reasons stated below and by separate order issued this date, defendant’s motion
shall be GRANTED and plaintiff’s cross-motion shall be DENIED by separate order issued this
date.
I. BACKGROUND
Plaintiff, American Association of Women, Inc., filed the complaint to compel defendant,
U.S. Department of Justice, and components thereof, to produce certain records under the
Freedom of information Act, 5 U.S.C. § 552 ("FOIA”). Compl., ECF No. l, at l. Plaintiffs
request for records under FOIA ("FOIA request") sought records and communications related to,
inter alia, the subject matter of a Los Angeles Times Article entitled, "FBI Kept L.A. Countyjail
probe secret from Baca and aides, flles show." Compl. 2-3. Plaintiff alleges that they submitted
the request to the Federal Bureau of Investigation ("FBI") on July 29, 2014, requesting records
from January l, 2011 until "the present." Compl. 3. The FBI, a component of defendant,
transmitted by letter dated August 19, 2014, a final determination that any responsive records
were exempt from production under FOIA exemption 7(A). Compl. 3; Answer, ECF No. 8, at 2.
Plaintiff then appealed the FBI’s determination to the U.S. Department of Justice Office of
information Policy, also a component of defendant. Compl. 3; Answer 2. Defendant claims that
it has satisfied its obligations under FOIA and that the records requested are properly withheld
under numerous exemptions, specifically (b)(7)(A), (b)(3), (b)(6), (b)(7)(C), (b)(7)(D), and
(b)(7)(E), and seeks summary judgment pursuant to Federal Rule of Civil Procedure 56 and
Local Rule 7(h). Def.’s Mot. Summ. J. l. In addition to filing an opposition in accordance with
Local Rule 7(b), plaintiff also filed cross-motion seeking summary judgment as well, alleging
that defendant waived the validly claimed exemptions. Pl.’s Cross-Mot. Summ. J. 1.
II. ANALYSIS
a. Standard of RevieW Generally - Summary Judgment under Fed. R. Civ. P.
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Federal Rule of Civil Procedure 56(a) provides that "[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled tojudgment as a matter of law." Fed. R. Civ. P. 56(a). The Supreme Court of
the United States noted that "the standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment," rather, "the requirement is that there be no genuine issue of material fact."
Anderson v. Libert_y Lobby, Inc., 477 U.S. 242, 247-8 (l986). Further, the Court noted that
"[o]nly disputes over facts that might affect the outcome of the suit under the goveming law will
Comm. For Freea'om ofPress, 489 U.S. 749, 756 (1989). Accordingly, the D.C. Circuit has held
that the exemption found at 7(C) “establishes a lower bar for withholding material" than the one
at exemption 6. ACLUv. U.S. Dep’t of./ustice, 655 F.3d 1, 6 (D.C. Cir. 2011). After reviewing
defendant’s argument and supporting evidence, the Court is satisfied that defendant has properly
claimed both exemptions from disclosure as the responsive records included personal
information of FB1 Special Agents and support personnel, third-parties of "investigative
interest," non-FBI federal government personnel, third-parties "merely mentioned," state and
local law enforcement personnel, and third-parties who provided information to the FB1.
v. Exemption 7(D)
Section 552(b)(7)(D), exempts "confidential source" information from disclosure. The
D.C. Circuit has held that a "source is confidential within the meaning of exemption 7(D) if the
source ‘provided such information under an express assurance of confidentiality or in
circumstances from which such an assurance could be reasonably inferred."’ Wz`lliams v. F.B.I.,
69 F.3d ll55, 1159 (D.C. Cir. 1995) (citing U.S. Dep't ofJustl'ce v. Landano, 508 U.S. 165, 170
(1993)) (intemal citations omitted). Defendant argues that the records withheld include
confidential source information, information identifying confidential sources, and information
provided by confidential sources under assurances of confidentiality. Defendant’s filing and
attached declaration satisfies the Court that it properly withheld confidential source information
as validly exempt under § 552(b)(7)(D).
vi. Exemption 7(E)
Section 552(b)(7)(E) exempts information from disclosure that “would disclose
techniques and procedures for law enforcement investigations or prosecutions, or would disclose
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guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably
be expected to risk circumvention of the law . . ." As noted by defendant, "[t]o show that . . .
documents were compiled for law enforcement purposes, the [agency] need only establish a
rational nexus between [an] investigation and one of the agency’s law enforcement duties and a
connection between an individual or incident and a possible security risk or violation of federal
law." Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 201 1) (internal citations and quotation marks
omitted). Pl.’s Mot. Summ. J. 43. Defendant asserts it has properly withheld responsive
materials under this exemption because the records include sensitive file numbers, dates and
types of investigations, and collection and analysist of information, which each implicate
exemption 7(E). Pl.’s Mot. Summ. J. 43-46. The Court agrees.
e. Off`icial Acknowledgment and Waiver
The only material fact that is arguably in dispute is whether defendant’s properly claimed
exemptions are waived because defendant "off`icially acknowledged" the disclosure of the
records and information at issue. See generally Fi'tzgibbon v. Central Intellz`gence Agency, 911
F.2d 755, 765 (D.C. Cir. l990); Ajshar v. Dep’t ofState, 702 F.2d 1l25, 1133 (D.C. Cir. 1983).
As plaintiff notes, the D.C. Circuit established three criteria to determine whether an item has
been "officially acknowledged." Id. The criteria are:
First, the information requested must be as specific as the information previously
released. Second, the information requested must match the information
previously disclosed; we noted, for example, that official disclosure did not waive
the protection to be accorded information that pertained to a later time period.
Third, we held that the information requested must already have been made public
through an official and documented disclosure.
911 F.2d at 765 (citing Afshar, 702 F.2d at 1133). The Afshar criteria identified in Fitzgz`bbon
guide the Court’s analysis here in determining whether defendant has waived the validly held
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exemptions In applying the Afvhar criteria, this Court has previously held that the "information
cannot merely be overlapping; it must be identical." Barre v. Obama, 932 F. Supp. 2d 5, 8
(D.D.C. 20l3) (citing Wolfv. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007)).
The first and second Ajfvhar criteria both require plaintiff to show that there was
information previously released. 702 F.2d at ll33. To support this element of the first two
criteria, plaintiff offers the L.A. Times article itself and asks the Court to rely upon statements
written by a non-party news organization. Pl.’s Cross-Mot. Summ. J., Ex. A, Decl. Leslie
Dutton, ECF No. l8-l. Plaintiff contends that this article makes it "clear that the L.A, Times had
access to the three records being withheld from [p]laintif ." Pl.’s Cross-Mot. Summ. J. 6.
Plaintiff further argues that since the L.A. Times article references "intemal FBI email and
confidential memos" as well as "an FBI case summary," it proves that the L.A. Times had access
to the three records located by defendant, specifically, "an email chain, consisting of internal
messages distributed electronically within the FBI; an Investigative Case Summary Report,
documenting the FBI’s decision-making process; and an Electronic Communication, which is
described as the primary vehicle of correspondence within the FBI." Pl.’s Cross-Mot. Summ. J.,
Ex. A, Decl. Leslie Dutton; Pl.’s Cross-Mot. Summ. J. 6-7 (citing Def.’s Mot. Summ. J., Decl.
David M. Hardy). The news article references, as plaintiff underscores, two general types of
sources. Defendant’s record search produced three specific records. This discrepancy makes it
difficult to find a connection between the information allegedly reviewed by the L.A. Times and
the records identified in defendant’s records search. However, even if the Court were to find this
sufficient to meet plaintiff"s burden that there was a previous release, plaintiff must still meet its
burden as to the remaining elements of the first two criteria, as well as the third Af_shar criteria.
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Next the Court examines whether plaintiff has met its burden to show that the
information previously released is as specific as the information requested under the first Afshar
criteria. 702 F.2d at 1133. To support this contention, in addition to the above-referenced
discussion, plaintiff claims that the article "summarizes numerous, if not all, passages contained
in the three records." Pl.’s Cross-Mot. Summ. J. 7. Unfortunately for plaintiff, the Court is still
troubled by the discrepancy even in the description of the records allegedly reviewed by the non-
party L.A. Times. Therefore, the Court is unpersuaded by plaintiff s conclusion.
The second Afshar criteria requires plaintiff to demonstrate that the information they
requested under FOIA matches the previously released information. 702 F.2d at 1133. Plaintiff
is again relying on supposition and conclusion, simply stating, "[a]lthough [p]laintiff has not
seen the records, it appears as though the information that is already public matches and is as
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specific as the information contained in the three responsive records. Pl.’s Cross-Mot. Summ.
J. 7. Plaintiff does not provide or identify evidence upon which plaintiff has reached this
conclusion. Plaintiff has therefore failed to carry its burden in this regard.
Lastly, the third Afshar criteria requires plaintiff to show that the information requested
was already "made public through an official and documented disclosure." 702 F.2d at 1133.
Defendant notes that the fact of an official and documented disclosure can be of independent
significance, as recognized in Aj"shar. Specifically, the Akhar court noted, "official
acknowledgment by an authoritative source might well be new information that could cause
damage to the national security." Id. at 1130. This distinction is at the core of Glomar
responsesl and effectively what defendant has done in this case. Plaintiff contends that
l A Glomar response is when an agency refuses to confirm or deny the existence of records "where to answer the
FOlA inquiry would cause harm cognizable under an FOIA exemption." Gardels v. CIA, 689 F.2d 1100, l 103
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defendant has made requested information public through an official disclosure, while apparently
ignoring defendant’s Glomar (or quasi-Glomar) response. Def.’s Mem. Opp. Pl.’s Cross-Mot.
Summ. J., Second Decl. David l\/I. Hardy, ECF No. 22-1.
Defendant offers sworn testimony that no officially acknowledged and documented
disclosure has occurred. Def.’s Mem. Opp. Pl.’s Cross-l\/lot. Summ. J. 3. Defendant informs the
Court that "the FBI has no evidence indicating the information presented in the L,A. Times article
came from any official source, and therefore, will not confirm or deny the contents of the
article." Def.’s Mem. Opp. Pl.’s Cross-Mot. Summ. J., Second Decl. David M. Hardy 3-4. The
Court views this response generally as a Glomar response and treats it as such. The D.C. Circuit
previously noted that according to the legislative history of the 1974 Amendments of the FOIA,
defendant’s affidavits are "entitled to substantial weight," in setting forth the basis for an
exemption. Weissman v. Central Intelligence Agency, 565 F.Zd 692, 697 fn. 10 (D.C. Cir. l977).
Plaintiff supports its argument mostly through negative inference and conjecture of a
nature unsatisfactory to the Court to allow a finding in plaintiffs favor. Specifically, plaintiff
states first that since the records "relate to the decision not to inform the L.A. County Sheriff
about the existence of a federal investigation, the records could not have been procured from the
L.A. County Sheriff"s office.” Pl.’s Cross-Mot. Summ. J. 7. While there may be a certain
comfortable logic to this contention, such logic is not proof that the records did not come from
the L.A. County Sherriff"s office. Nor does it prove that such records were the subject of an
officially acknowledged documented disclosure. Next, plaintiff concludes that "[a]l1 evidence
suggests that the FBI officially provided information to the L.A. Times" for four reasons. Ia'.
(D.C. Cir. l982). This type of response is known as a Glomar response based upon such a response allowed by
Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) (case involving the ClA refusing to confirm or deny existence of
records regarding Howard Hughes’ ship the Glomar Explorer).
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First, plaintiff claims that there is "no evidence that the FBI considers the release of the
information to be improper." Id. Second, plaintiff claims that there is no evidence "that an
investigation is taking place to determine how the information became public." Id. Third,
plaintiff alleges that there is no "evidence that an FBI employee has been disciplined for
providing the information to the FBI [sic]." Id. Lastly, plaintiff argues that there is no "evidence
that the FBI has sought to collect or recover the three records from the L.A. Times." Id.
Plaintiff s argument follows this court’s rationale in analyzing agency response in relation to an
inadvertent disclosure of a top-secret document in Barre v. Obama, 932 F. Supp. 2d 5 (20l3).
This Court’s rationale in Barre, discussing the measures taken to neutralize the inadvertent
disclosure of a top-secret document, does not support plaintiffs conclusion in the case at bar.
Plaintiff suggests that defendant has "not provided any concrete evidence whatsoever that
it or any of its employees did not disclose the three records to the L.A. Times." Pl.’s Cross-Mot.
Summ. J. 6-7. Ironically, plaintiff concludes that defendant "only submits a self-serving,
conclusory statement." Id. In fact, the plaintiff takes this argument one step further and relies on
Natz'onal Securily Counselors v. CIA, 960 F. Supp. 2d lOl (20l3) (Howell, J.) to argue that the
burden has now shifted to defendant to demonstrate the information at issue has not been
disclosed. Pl.’s Cross-Mot. Summ. J. 7. The Court sees nothing in the record sufficient to carry
plaintiff s burden that the information contained in its request is identical to that described in the
article. The burden therefore remains with plaintiff. Natz`onal Securily Counselors, 960 F. Supp.
2d at l69; see also Davz's v. Dep ’t of./ustz`ce, 968 F.2d 1276, 1280 (D.C. Cir. 1992).
Fur“ther, plaintiff asks this court to ignore the distinction between official and unofficial
disclosure as well as the distinction between a Glomar response and confirmation or
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acquiescence. Plaintiff further concludes that defendant has confirmed or acquiesced that the
information reported by the L.A. Times is the same as the records responsive to plaintiff" s FOIA
request.
Plaintiff further suggests that it has made a "straightforward argument[] as to why the
records have been implicitly, if not explicitly, made public through an official documented
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disclosure.’ Pl.’s Reply Supp. Cross-Mot. Summ. J. 3. While admittedly straightforward,
plaintiff’ s proffered reasoning is also conclusory and therefore unavailing
The Court finds that there was no officially acknowledged and documented disclosure of
the information at issue.
III. CONCLUSION
In light of the Court’s analysis defendant’s motion shall be GRANTED and plaintiffs
cross-motion shall be DENIED by a separate order issued this date.
Signed by Royce C. Lamberth, United States District Judge, March 7, 20l6.
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properly preclude the entry of summary judgment." Id. at 248. In another case examining
whether there was a genuine issue of material fact, the Supreme Court noted that "facts must be
viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as
to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007). The Supreme Court has held that "a
party seeking summary judgment always bears the initial responsibility of informing the district
court of the basis for its motion . . . ." Celotex Corp. v. Catrelt, 477 U.S. 317, 323 (l986).
Further, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. C0., v. Zem'th Radio Corp., 475 U.S. 574, 586 (l986).
b. Summary Judgment in FOIA Cases
Plaintiff correctly notes that "FOlA generally requires complete disclosure of requested
agency information unless the information falls into one of FOIA’s nine clearly delineated
exemptions." Pl.’s Mem. Opp. Summ. J. 4 (citing 5 U.S.C. § 552(b); Dep’t ofthe Air Force v.
Rose, 425 U.S. 352, 360-361 (l976)). Nonetheless, "FOIA cases typically and appropriately are
decided on motions for summary judgment." Defenders of Wz'ldlzfez v. U.S. Border Patrol, 623 F.
Supp. 2d 83, 87 (D.D.C. 2009). The D.C. Circuit previously held "courts may grant summary
judgment on the basis of agency affidavits that contain ‘reasonable specificity of detail rather
than merely conclusory statements, and if they are not called into question by contradictory
evidence in the record or by evidence of agency bad faith."’ Elec. Privacy Info. Ctr. v. Nat’l Sec.
Agency, 678 F.3d 926, 931 (D.C. Cir. 2012) (hereinafter "EPIC") (citing Gardels v. CIA, 689
F.3d ll00, 1105 (D.C. Cir. 1982)).
c. Reasonableness of Search
The D.C. Circuit noted that the standard of review related to the agency search for
records in a FOIA cases is whether "the materials submitted by the agency satisfactorily
demonstrate the apparent adequacy of the search conducted." Perry v. Block, 684 F.2d 121, 127
(D.C. Cir. 1982). To meet this burden, "the agency must demonstrate that it has conducted a
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‘search reasonably calculated to uncover all relevant documents. Wez`sberg v. Dep ’t of Justice,
745 F.2d 1476, 1485 (D.C. Cir. l984). Further, the adequacy of the search "is generally
determined not by the fruits of the search, but by the appropriateness of the methods used to
carry out the search." Iturralde v. Comptroller of Currency, 3l5 F.3d 31 l, 315 (D.C. Cir. 2003)
(citing Stez'nberg v. Dep’t ofJustz`ce, 23 F.3d 548, 551 (D.C. Cir. 1994)). Plaintiffs fail to address
the search conducted by defendant in this case. After reviewing defendant’s description of its
search, the Court concludes that defendant has shown that it "made a good faith effort to conduct
a search for the requested records, using methods which [were] reasonably expected to produce
the information requested." Def.’s Mot. Summ. J. 13-18; OgIesby v. U.S. Dep’t. ofArmy, 920
F.2d 57, 68 (D.C. Cir. 1990) (citations omitted).
d. Exempti0ns Claimed
Next, defendant argues that it properly applied exemptions to withhold the records
responsive to plaintiffs FOIA request. Def.’s Mot. Summ. J., ECF No. 14, at 18. Specifically,
defendant asserts that the records were exempt from disclosure primarily under § 552(b)(7)(A),
as well as under § 552(b)(l), (b)(3), (b)(6), (b)(7)(C), and (b)(7)(E). Id. at 24-25. It is well-
settled that FOIA provides "a general philosophy of full agency disclosure unless information is
exempted under clearly delineated statutory language." Dep’t of Air Force v. Rose, 425 U.S.
352, 360-361 (l976) (quoting S. Rep. No. 8l3, 89th Cong., lst Sess., 3 (1965)). Therefore, the
Court examines whether each exemption is properly claimed by defendant. Plaintiff does not
address whether defendant’s exemptions are validly claimed in its filings.
i. Exemption 7(A)
Section 552(b)(7)(A) exempts information from disclosure that was "compiled for law
enforcement purpose, but only to the extent that the production of such law enforcement records
or information . . . could reasonably be expected to interfere with enforcement proceedings."
The D.C. Circuit has held that under this exemption "an agency must show that [the records]
were compiled for law enforcement purposes and that their disclosure (l) could reasonably be
expected to interfere with (2) enforcement proceedings that are (3) pending or reasonably
anticipated." Mapother v. Dep ’t of Justz`ce, 3 F.3d 1533, 1540 (D.C. Cir. 1993).
To support invoking this exemption under the FOIA, defendant explains that the
information was compiled for law enforcement purp0ses, that there are pending law enforcement
proceedings, and describes the types of "law enforcement records withheld under (b)(7)(A).
Def.’s Mot. Summ. J. 14-l8. Defendant further presents a declaration stating, in part, that the
"harm that could reasonably be expected to result from disclosure concerns potential interference
with an ongoing law enforcement investigation, and the potential prosecution of individuals
accused of abusing and/or using brutality . . . against prisoners in Los Angeles County jails."
Def.’s Mot. Summ. J., Decl. David M. Hardy, ECF No. 14-2, at l3. In support of this argument
and declaration, defendant offers a thorough accounting of their rationale as to exemption 7(A).
First, defendant argues that the records that it withheld were compiled "during
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investigation into allegations of prisoner abuse . . . as part of the FBl’s "responsibility to
investigate civil right violations pursuant to 18 U.S.C. § 241 (Conspiracy Against Rights), and 18
U.S.C. § 242 (Deprivation of Rights Under Color of Law)." Id. As such, the records responsive
to plaintiff’ s FOIA request were specifically compiled for law enforcement purposes meeting the
first prong of the exemption 7(A). Regarding the second prong, defendant explains that these
records have been compiled as described above and, "disclosure of any information from the
records in the midst of these ongoing investigations, is reasonably expected to interfere with the
investigation as well as any prospective prosecution(s)." 5 U.S.C. § 552(b)(7)(A); Def.’s Mot.
Summ. J. 14 (citing Decl. David M. Hardy).
While defendant does not provide a listing of the documents that are withheld, the Court
is satisfied by defendant’s rationale that to do so would implicate the exact harm discussed
above. Rather, defendant provides an analysis of each type and category of record that has been
withheld. Def.’s Mot. Summ. J. l5. Defendant explaints that it has withheld three types of
records; standard FBl intemal communications, internal emails, and investigative case summary
reports. Id. Defendant further explains that it has subdivided these different media into
categories compromising evidentiary and investigative materials, administrative materials, and
reporting communications. Ia’. Defendant’s description of the types media withheld is
informative, but not dispositive as~to whether such records have been properly withheld.
Conversely, defendant’s explanation of the categories of information reflected in the records is
dispositive as to whether the exemption is properly invoked.
The first category of information withheld is evidentiary and investigative materials.
Def.’s Mot. Summ. J. l6. Defendant explains that this category of information includes records
that have investigative summaries, actual documentary evidence, investigative notes, and the
like. Id. Defendant argues, and the Court agrees, that release of this category of information
would "reveal investigative details pertaining to an on-going investigation and/or prosecutions,
scope and direction of the investigation, and reveal information that could be exploited by
individuals during prosecutions." Def.’s Mot. Summ. J. 16 (citing Decl. David M. Hardy). The
Court is satisfied that this category of record, in each of the types described above, is properly
exempt from disclosure under exemption 7(A).
The second category of information that defendant has withheld is administrative
materials. Def.’s Mot. Summ. J. l6. Defendant describes this category of information as
coordinating information between law enforcement agencies, investigative procedures or
guidelines, and otherwise information that could "enable suspects to discern a ‘road map’ of the
investigation and prosecution." Decl. David M. Hardy. The Court is satisfied that this category
of information, in each of the types described above, is properly exempt from disclosure under
exemption 7(A).
Lastly, the final type of category of information consists of reporting communications,
which "permit an agency to monitor the progress of the investigation." Def.’s Mot. Summ. J. l7.
Defendant explains that such communications include summaries of investigative activities,
detailed witness inforrnation, background information on third parties, information on related
investigations, and similar information. Id. Defendant argues that the "release of this
information would reveal the nature and scope of the ongoing prosecutions and provide
information that could be exploited by individuals with on-going or prospective trials." Id. The
Court is also satisfied that this category of information, in each of the types described above, is
properly exempt from disclosure under exemption 7(A).
Defendant demonstrates that the records in question were compiled for law enforcement
purposes and shows that their disclosure could reasonably be expected to interfere with pending
law enforcement proceedings. Def.’s Mot. Summ. J. 19-24. Defendant goes on to explain that it
has reviewed the records at issue for segregability, to determine whether any portion of the
records could have been segregated and released. After such review, defendant explains that
"the FBI is unable to release any information in the pending investigative file without
jeopardizing prosecutorial efforts, revealing the scope and extent of the FBI’s investigations, or
revealing the extent of cooperation within the investigation." Id. Therefore, the Court is satisfied
that none of the records at issue can be segregated and released pursuant to the FOIA. The Court
is thus satisfied that the records were properly withheld from disclosure as exempt under §
55Z(b)(7)(A).
ii. Exemption 1
Section 552(b)(1) exempts, in relevant part, information from disclosure that are
"specifically authorized under criteria established by an Executive order to be kept secret in the
interest of national defense or foreign policy and . . . in fact properly classified pursuant to such
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Executive order. Therefore, as defendant notes, for exemption 1 to apply, the information at
issue must have been properly classified. Def.’s Mot. Summ. J. 19 (citing Lesar v. U.S. Dep’t of
Justice, 636 F,Zd 472, 483 (D.C. Cir. 1980)).
Further, "in the FOIA context," the D.C. Circuit has "consistently deferred to executive
affidavits predicting harm to the national security, and have found it unwise to undertake
searching judicial review." Cir. For Nat’l Sec. Studz`es v. U.S. Dep ’t of Justice, 33l F.3d 918,
927 (D.C. Cir. 2003) (citations omitted). Defendant notes that Mr. Hardy reviewed all of the
information responsive to plaintiffs FOIA request and determined that there is information
which was properly classified under Executive Order l3,526. Def.’s Mot. Summ. J. 20.
Defendant then went on to explain that the detailed information falling under this exemption
could be used by "hostile entities" to "develop counterrneasures that would, in turn, severely
disrupt the FBI’s intelligence~gathering capabilities." Id. As urged by defendant, therefore, the
Court will "defer to Mr. Hardy’s sworn declaration that a number of responsive documents are
classified" and therefore were properly withheld from disclosure as exempt under § 552(b)(l).
Def.’s Mot. Sum. J. 28.
iii. Exempti0n3
Section 552(b)(3) exempts, in relevant part, information from disclosure that:
is specifically exempted from disclosure by statute . . . provided that such statute
(A)(i) requires that the matters be withheld from the public in such a manner as to
leave no discretion on the issue; or (ii) establishes particular criteria for
withholding or refers to particular types of matters to be withheld; and (B) if
enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically
cites to this paragraph.
Defendant argues that it properly withheld information under exemption 3 for information
covered by the National Security Act of 1947 ("NSA") as amended by the Intelligence Reform
and Terrorism Prevention Act of 2004 ("IRTPA"). Def.’s Mot. Summ. J. 23; 50 U.S.C. §
3024(i)(l). Defendant argues that the NSA as so amended provides that the Director of Natinoal
Intelligence ("DNI") has no discretion in whether to withhold information relating to intelligence
sources and methods. Id. Accordingly, defendant submits the portion of Mr. Hardy’s
declaration which notes, "I have determined that the FBI’s intelligence sources and methods
would be revealed if any of the withheld information is disclosed to plaintiffs, and thus, the FBI
is prohibited from disclosing the information under 50 U.S.C. § 3024(i)(l)." [d. After reviewing
defendant’s argument on this matter, and deferring to Mr. Hardy’s declaration as explained
above, the Court is satisfied that defendant properly withheld such portions of the responsive
records as are exempt from disclosure under the National Security Act of 1947 as amended by
the intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. § 3024(i)(l).
iv. Exemptions 6 and 7(C)
Section 552(b)(6) exempts information from disclosure that constitute "personnel and
medical files and similar files the disclosure of which would constitute a clearly unwarranted
33
invasion of personal privacy. The Supreme Court previously held that it does not share the
view that "Congress meant to limit Exemption 6 to a narrow class of files containing only a
discrete kind of personal information. Rather, ‘[t]he exemption [was] intended to cover detailed
Government records on an individual which can be identified as applying to that individual."’
U.S. Dep’t ofState v. Washington Post C0., 456 U.S. 595, 602 (l982) (citing H.R. Rep. No.
l497, 89th Cong., 2nd Sess., ll (l966), U.S. Code Cong. & Admin. News 1966, pp. 2418,
2428). Section 552(b)(7)(C) exempts information from disclosure that was "compiled for law
enforcement purpose, but only to the extent that the production of such law enforcement records
or information . . . could reasonably be expected to constitute an unwarranted invasion of
personal privacy." The Supreme Court has also noted that "Exemption 7(C)’s privacy language
is broader than the comparable language in Exemption 6." U.S. Dep’t of Justice v. Reporters
l0