Muslim Advocates v. United States Department of Justice , 833 F. Supp. 2d 92 ( 2011 )


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  •                                                                 UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ________________________________
    )
    MUSLIM ADVOCATES,               )
    )
    Plaintiff,       )
    ) Civil Action No. 09-1754
    v.               )
    )
    UNITED STATES DEPARTMENT        )
    OF JUSTICE,                     )
    )
    Defendant.       )
    )
    MEMORANDUM OPINION
    Plaintiff Muslim Advocates brings this action under the
    Freedom of Information Act (“FOIA”), seeking the complete and
    unredacted final version of certain chapters of the Domestic
    Investigations and Operations Guide (the “DIOG”) of the Federal
    Bureau of Investigation (“FBI”), which were previously shown to
    plaintiff and other civil rights and civil liberties groups
    during two meetings at FBI headquarters in November 2008 (the
    “November 2008 meetings”).1                                                                         Plaintiff principally argues that
    the FBI waived its right to withhold those chapters of the DIOG
    after it allowed representatives of Muslim Advocates and other
    1
    In its complaint, plaintiff initially sought disclosure of
    the complete and unredacted final versions of the DIOG. Compl.
    ¶ 1. Plaintiff, however, subsequently limited its request to
    “those four chapters of the DIOG that were circulated during the
    November [2008] meetings[.]” Pl.’s Combined Opp’n and Cross-
    Mot. at 3.
    organizations to review and take notes on the materials during
    the November 2008 meetings.                                                                          Defendant, the Department of
    Justice (the “government” or the “agency”), disputes plaintiff’s
    allegation of waiver, and argues that it properly withheld the
    material pursuant to FOIA Exemption 7(E), 
    5 U.S.C. § 552
    (b)(7)(E), because production of the requested material
    would result in disclosure of specific internal investigatory
    techniques and procedures that are used by the FBI and would
    present a risk that “criminals, terrorists and foreign
    intelligence operatives would be assisted in or emboldened to
    violate the law and circumvent the FBI’s enforcement efforts.”2
    Def.’s Combined Opp’n & Reply at 2-3.
    Pending before the Court are the parties’ cross-motions for
    summary judgment.                                                 Upon careful consideration of the motions,
    the responses and replies thereto, the parties’ supplemental
    filings, the applicable law, and the entire record, including
    the agency’s affidavits and the relevant chapters of the DIOG,
    the Court hereby GRANTS IN PART AND DENIES IN PART defendant’s
    2
    In its motion for summary judgment, defendant also argued
    that it properly withheld the disputed material pursuant to FOIA
    Exemption (b)(2), 
    5 U.S.C. § 552
    (b)(2). Following the Supreme
    Court’s decision in Milner v. Department of the Navy, 
    131 S. Ct. 1259
     (2011), however, defendant withdrew that argument. See
    Def.’s Response to Pl.’s Notice, Docket No. 26 (“In light of the
    Supreme Court’s decision in Milner, Defendant no longer relies
    on exemption (b)(2) to support its withholding of ‘High 2’
    information. It continues to rely on FOIA’s exemption (b)(7)(E)
    as justification for the same withholdings[.]”).
    2
    motion for summary judgment and DENIES plaintiff’s cross-motion
    for summary judgment.
    I.     Background
    A.     The DIOG
    As noted above, plaintiff seeks release of certain chapters
    of the FBI’s Domestic Investigations and Operations Guide.           The
    DIOG was written to consolidate policy pursuant to the Attorney
    General’s Guidelines for Domestic FBI Operations, which was
    signed by Attorney General Michael Mukasey on September 29,
    2008.       Pl.’s SMF ¶ 1.   In the preamble of the DIOG, FBI Director
    Robert S. Mueller, III describes the purpose of the DIOG as
    follows:
    While investigating crime, terrorism, and threats to
    the national security, and collecting foreign
    intelligence, the FBI must fully comply with all
    laws and regulations, including those designed to
    protect civil liberties and privacy. . . . To assist
    the FBI in its mission, the Attorney General signed
    The Attorney General’s Guidelines for Domestic FBI
    Operations (AGG-Dom) on September 29, 2008. The
    primary purpose of the AGG-Dom and the Domestic
    Investigations and Operations Guide (DIOG) is to
    standardize policy so that criminal, national
    security, and foreign intelligence investigative
    activities are accomplished in a consistent manner,
    whenever possible (e.g., same approval,
    notification, and reporting requirements). . . . The
    changes implemented by the DIOG should better equip
    [the FBI] to protect the people of the United States
    against crime and threat to national security and to
    collect foreign intelligence.
    Docket No. 12-1, DIOG-11.        Implemented in December 2008, the
    DIOG is a “‘comprehensive 270-page collection of procedures,
    3
    standards, approval levels, and explanations[,]’” that contains
    information “ranging from general principles to chapters
    detailing the FBI’s procedures for conducting clandestine
    operations.”                                         Def.’s Mot. at 2 (internal citations omitted).
    B.                 The November 2008 Meetings & the December 2008
    Implementation of the DIOG
    Prior to implementing the DIOG, however, the FBI held two
    meetings with civil rights and civil liberties groups in
    November 2008.3                                                Specifically, by emails dated November 12, 2008
    and November 17, 2008, the FBI invited various organizations to
    attend two separate meetings as part of an outreach program to
    obtain input on the civil liberty, privacy and civil rights
    concerns on the DIOG.                                                                  Pl.’s SMF ¶ 7.                                            The invitation received by
    Muslim Advocates provided as follows:
    The FBI Office of General Counsel (OGC) would like to
    invite you to participate in a discussion of
    respectively, civil liberty/privacy and civil rights
    protections in the FBI’s new Domestic Investigative
    Operational Guidelines (which will implement the new
    AGG) on Wednesday November 19th at 1:00 pm at FBI
    headquarters. OGC will provide pertinent sections for
    you to read. The manual has not been finalized. Your
    input and suggestions will be well received and
    appreciated. Please RSVP by November 14, 2008.
    Ex. A to the Declaration of Brenda Abdelall (“Abdelall Decl.”),
    Docket No. 16-3.
    3
    The Court will note that for purposes of resolving the
    pending cross-motions, the FBI has agreed to accept Muslim
    Advocates’ version of events at the November 2008 meetings.                                                                                                                                                                        See
    Def.’s Combined Opp’n & Reply at 6.
    4
    During the November 2008 meetings, a representative of the
    FBI gave an introductory presentation about the DIOG.                                                                                                                                              Pl.’s SMF
    ¶ 12.                   All of the attendees were provided with a copy of the
    presentation, which they were required to return at the end of
    the presentation.                                                  Pl.’s SMF ¶ 12.
    Attendees were also provided with Chapters 4, 5, 10, and 16
    of the DIOG (the “disputed chapters”).                                                                                                        Pl.’s SMF ¶ 13.                                           These
    chapters discuss: (i) “Privacy and Civil Liberties, and Least
    Intrusive Methods” (Chapter 4); (ii) “Assessments” (Chapter 5);
    (iii) “Sensitive Investigative Matter / Academic Nexis” (Chapter
    10); and (iv) “Undisclosed Participation” (Chapter 16).                                                                                                                                                   See
    Docket No. 12-1, DIOG-3 – DIOG-9.                                                                                           The version of the disputed
    chapters disclosed at the November 2008 meetings totaled
    approximately 100 pages in length and did not contain any
    redactions.                                   See Pl.’s SMF ¶ 15; Abdelall Decl. ¶ 10.4
    After the introductory presentation concluded, attendees
    were given time to review and take notes on the disputed
    chapters.                              Pl.’s SMF ¶ 16.                                             FBI Deputy General Counsel Dave
    Larson remained in the room while the attendees reviewed the
    materials and “told them that they could take their time
    4
    Although the chapters provided to the attendees were in
    draft form, see Pl.’s SMF ¶ 13, the government has stipulated
    for purposes of summary judgment “that the chapters of the DIOG
    reviewed at these meetings were substantially the same as the
    chapters in the final DIOG.” Def.’s Combined Opp’n & Reply at
    2.
    5
    reviewing the documents.”    Pl.’s SMF ¶ 19.    Mr. Larson also
    “welcomed participant commentary and took notes on the
    commentary.”    Pl.’s SMF ¶ 19.
    At the conclusion of the meetings, which lasted
    approximately two hours, attendees were required to return the
    disputed chapters and were thanked for their help and feedback.
    See Pl.’s SMF ¶ 20; Abdelall Decl. ¶¶ 20-21.      Attendees were
    permitted, however, to take their notes on the DIOG with them
    and were never asked to return them.      Pl.’s SMF ¶ 17.   In
    addition, attendees were not told that the material reviewed at
    the meeting was confidential or that they could not share the
    information with their respective groups, communities, or the
    general public; nor were participants required to sign any
    documents affirming that they would keep this information
    confidential.    Pl.’s SMF ¶ 18; see also Pl.’s SMF ¶ 8.
    The day after the second meeting, on November 26, 2008,
    Muslim Advocates and several other organizations that had
    attended the November 2008 meetings wrote a letter to Director
    Mueller “reiterating their concerns over the civil liberties and
    civil rights implications of the DIOG, as well as expressing
    concerns with the lack of meaningful review of the DIOG and
    again calling for the public release.”      Pl.’s SMF ¶ 21; see also
    Ex. H to Declaration of Farhana Khera (“Khera Decl.”), Docket
    No. 16-15 (requesting an opportunity for “meaningful review” of
    6
    the DIOG in advance of its scheduled implementation; explaining
    that “no copies [of the DIOG] have been released to date, ad
    [sic] participants in the briefings were not allowed to examine
    the 100-page document except during the live sessions, neither
    of which afforded sufficient time for a rigorous examination”).
    Despite plaintiff’s request that implementation of the DIOG be
    delayed, see Ex. H to Khera Decl., Docket No. 16-15, the DIOG
    was implemented on December 16, 2008, see Pl.’s SMF ¶ 23.
    C.   Plaintiff’s FOIA Request & Initiation of this Action
    Soon thereafter, on January 28, 2009, plaintiff sent a FOIA
    request to the DOJ Office of Information and Privacy and the FBI
    FOIA Requester Service Center.     Pl.’s SMF ¶ 25.      The FBI
    responded to plaintiff’s FOIA request on March 18, 2009,
    informing plaintiff that portions of the DIOG would be released
    to the public on the FBI’s public website, and that it was
    therefore closing plaintiff’s FOIA request.      Pl.’s SMF ¶ 27.     On
    May 15, 2009, after nearly two months of waiting for the public
    release of the DIOG, plaintiff appealed the decision to close
    its FOIA request to the Office of Information and Privacy.
    Pl.’s SMF ¶ 30.     The office acknowledged receipt of the appeal
    on May 27, 2009, but did not release the DIOG.         Pl.’s SMF ¶ 31.
    Plaintiff then filed suit in this Court on September 16, 2009
    seeking disclosure of the DIOG.      See Compl. ¶ 1.
    7
    Following plaintiff’s initiation of this action, the FBI
    posted a redacted version of the DIOG on its website on
    September 25, 2009.    See Pl.’s SMF ¶ 46.     In response to this
    limited release, plaintiff filed an amended complaint, in which
    it renewed its request for a “complete and unredacted final
    version” of the DIOG, arguing that the redacted material was
    “wrongfully withheld.”    Am. Compl. ¶¶ 34, 35; see also Am.
    Compl. ¶ 2 (“On September 25, 2009, the Department posted a
    significantly redacted version of the DIOGs to the FBI website,
    withholding nearly entire sections on a number of topics—
    including sections that address the infiltration of Muslim
    community and religious organizations.       These redactions are
    particularly unjustifiable because unredacted versions of these
    key sections were discussed and/or included in the version shown
    to Plaintiff during the November 2008 meetings.”).
    The agency subsequently filed a motion for summary
    judgment. Although defendant initially sought summary judgment
    as to all of the information withheld in the DIOG, the scope of
    this litigation was significantly narrowed by plaintiff’s
    decision to limit its arguments to “those four chapters of the
    DIOG that were circulated during the November [2008] meetings -
    Chapters 4, 5, 10, and 16[.]”    Pl.’s Combined Opp’n and Cross-
    Mot. at 3.    The scope of this litigation was further narrowed
    after the agency then determined that Chapter 4 of the DIOG
    8
    could be released “without harm” and produced that chapter in
    its entirety.       See Def.’s Combined Opp’n & Reply at 3.     Pending
    before the Court, therefore, are cross-motions for summary
    judgment regarding the FBI’s decision to withhold certain
    information contained in Chapters 5, 10, and 16 of the DIOG.
    Those motions are now ripe for determination by the Court.
    II. Legal Framework
    A. Rule 56
    Pursuant to Federal Rule of Civil Procedure 56, summary
    judgment should be granted if the moving party has shown that
    there are no genuine issues of material fact and that the moving
    party is entitled to judgment as a matter of law.          See Fed. R.
    Civ. P. 56; Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 325 (1986);
    Waterhouse v. District of Columbia, 
    298 F.3d 989
    , 991 (D.C. Cir.
    2002).    In determining whether a genuine issue of material fact
    exists, the court must view all facts in the light most
    favorable to the non-moving party.          See Matsushita Elec. Indus.
    Co. v. Zenith Radio Corp., 
    475 U.S. 574
    , 587 (1986).          Likewise,
    in ruling on cross-motions for summary judgment, the court shall
    grant summary judgment only if one of the moving parties is
    entitled to judgment as a matter of law upon material facts that
    are not genuinely disputed.       See Citizens for Responsibility &
    Ethics in Wash. v. Dep’t of Justice, 
    658 F. Supp. 2d 217
    , 224
    9
    (D.D.C. 2009) (citing Rhoads v. McFerran, 
    517 F.2d 66
    , 67 (2d
    Cir. 1975)).
    B. FOIA
    FOIA requires agencies to disclose all requested agency
    records, 
    5 U.S.C. § 552
    (a), unless one of nine specific
    statutory exemptions applies, 
    id.
     § 552(b).    “It is designed to
    pierce the veil of administrative secrecy and to open agency
    action to the light of public scrutiny.”    Consumers’ Checkbook,
    Ctr. for the Study of Servs. v. United States HHS, 
    554 F.3d 1046
    , 1057 (D.C. Cir. 2009) (internal quotation marks omitted).
    “Consistent with ‘the basic policy that disclosure, not secrecy,
    is the dominant objective of the Act,’ the statutory exemptions
    are ‘narrowly construed.’”    
    Id.
     (quoting Dep’t of Air Force v.
    Rose, 
    425 U.S. 352
    , 361 (1976)); see also Wolf v. CIA, 
    473 F.3d 370
    , 374 (D.C. Cir. 2007) (“Given the FOIA’s broad disclosure
    policy, the United States Supreme Court has ‘consistently stated
    that FOIA exemptions are to be narrowly construed.’” (quoting
    Dep’t of Justice v. Julian, 
    486 U.S. 1
    , 8 (1988))).
    “FOIA’s ‘strong presumption in favor of disclosure places
    the burden on the agency’ to justify nondisclosure.”    Consumers’
    Checkbook, 
    554 F.3d at 1057
     (quoting Dep’t of State v. Ray, 
    502 U.S. 164
    , 173 (1991)).    The government may satisfy its burden of
    establishing its right to withhold information from the public
    by submitting appropriate declarations and, where necessary, an
    10
    index of the information withheld.                                                                                             See Vaughn v. Rosen, 
    484 F.2d 820
    , 827-28 (D.C. Cir. 1973).                                                                                              “If an agency’s affidavit
    describes the justifications for withholding the information
    with specific detail, demonstrates that the information withheld
    logically falls within the claimed exemption, and is not
    contradicted by contrary evidence in the record or by evidence
    of the agency’s bad faith, then summary judgment is warranted on
    the basis of the affidavit alone.”                                                                                             ACLU v. Dep’t of Defense,
    
    628 F.3d 612
    , 619 (D.C. Cir. 2011).                                                                                                Moreover, “‘an agency’s
    justification for invoking a FOIA exemption is sufficient if it
    appears ‘logical’ or ‘plausible.’’”                                                                                                ACLU, 
    628 F.3d at 619
    (quoting Larson v. Dep’t of State, 
    565 F.3d 857
    , 862 (D.C. Cir.
    2009)).
    III. Discussion
    A.                Waiver
    The threshold issue before the Court is whether the FBI
    waived its right to invoke Exemption 7(E)5 and withhold the
    redacted material in the disputed chapters of the DIOG after it
    allowed members of various civil rights and civil liberties
    5
    Exemption 7(E) protects from disclosure “records or
    information compiled for law enforcement purposes, but only to
    the extent that the production of such law enforcement records
    or information . . . would disclose techniques and procedures
    for law enforcement investigations or prosecutions, or would
    disclose guidelines for law enforcement investigations or
    prosecutions if such disclosure could reasonably be expected to
    risk circumvention of the law.” 
    5 U.S.C. § 552
    (b)(7)(E).
    11
    groups to review unredacted versions of the chapters during the
    November 2008 meetings.     Plaintiff argues that waiver has
    occurred, explaining that because the FBI “already disclosed
    chapters 4, 5, 10, and 16 to members of the general public . . .
    [it] can no longer rely on any exemption to continue withholding
    the requested information.”    Pl.’s Combined Opp’n & Cross-Mot.
    at 17.    Defendant, by contrast, contends that “because the
    contested provisions of the DIOG have not been made part of a
    permanent public record, the FBI has not waived any FOIA
    exemptions.”    Def.’s Combined Opp’n & Reply at 6.   For the
    reasons discussed below, the Court agrees with defendant and
    finds that no waiver occurred.
    In this Circuit, the “public-domain doctrine” has emerged
    as the dominant paradigm for evaluating the waiver of a
    potential FOIA exemption.     “Under [the] public-domain doctrine,
    materials normally immunized from disclosure under FOIA lose
    their protective cloak once disclosed and preserved in a
    permanent public record.”     Cottone v. Reno, 
    193 F.3d 550
    , 554
    (D.C. Cir. 1999) (citing Niagara Mohawk Power Corp. v. United
    States Dep’t of Energy, 
    169 F.3d 16
    , 19 (D.C. Cir. 1999)
    (Exemption 4); Public Citizen v. Dep’t of State, 
    11 F.3d 198
    ,
    201-03 (D.C. Cir. 1993) (Exemption 1); Davis v. United States
    Dep’t of Justice, 
    968 F.2d 1276
    , 1276 (D.C. Cir. 1992)
    (Exemptions 3 & 7(C)); Afshar v. Dep’t of State, 
    702 F.2d 1125
    ,
    12
    1130-34 (D.C. Cir. 1983) (Exemptions 1 & 3)).                                                                                                                       The logic of this
    doctrine is that “where information requested ‘is truly public,
    then enforcement of an exemption cannot fulfill its purposes.’”
    
    Id.
     (quoting Niagara Mohawk, 
    169 F.3d at 19
    ).                                                                                                                       “[A] plaintiff
    asserting that information has been previously disclosed bears
    the initial burden of pointing to specific information in the
    public domain that duplicates that being withheld.”                                                                                                                                      Public
    Citizen, 
    11 F.3d at 201
    .
    Plaintiff principally argues that the disputed chapters of
    the DIOG are in the public domain because the FBI allowed
    individuals outside of the agency to review the material.                                                                                                                                                     See
    Pl.’s Combined Opp’n & Cross-Mot. at 18 (“By handing out [the
    disputed chapters] to persons outside the agency, the FBI
    knowingly released the information to the public[.]” (citing
    Leadership Conf. on Civil Rights v. Gonzales, 
    404 F. Supp. 2d 246
    , 254-55 (D.D.C. 2005)6); Pl.’s Reply at 6 (“When the FBI
    6
    The Court finds plaintiff’s reliance on Leadership
    Conference on Civil Rights misplaced as that case does not
    address the issue of waiver or the public-domain doctrine.
    Instead, it deals with whether the government properly withheld
    certain documents pursuant to Exemption 5 of FOIA, which
    protects “inter-agency or intra-agency memorandums or letters
    which would not be available by law to a party other than an
    agency in litigation with the agency.” 
    5 U.S.C. § 552
    (b)(5).
    That court found that Exemption 5 was inapplicable, explaining
    that “[b]ecause the 2004 training manual was made available to
    individuals not associated with the executive branch, it cannot
    be ‘inter-agency or intra-agency’ communication, and thus does
    not satisfy the requirements for application of the deliberative
    process privilege of Exemption 5.” Leadership Conf. on Civil
    13
    allowed members of the general public to read and take notes on
    the four chapters of the DIOG, it released the information in
    those chapters to the public and lost control over the
    distribution of that information.                                                                                                                                                                                                                                                                                                                                                            Members of the general public
    now control that information, which puts it in the public
    domain.”).                                                                                                                        The Court finds this argument unpersuasive.
    Although the FBI allowed Muslim Advocates and several other
    civil rights and civil liberties groups to view the disputed
    chapters during a two-hour meeting at FBI headquarters, the
    Court is not convinced that such a limited review is sufficient
    to satisfy the requirements of the public-domain doctrine in the
    absence of evidence that the disputed chapters are now “truly
    public.”                                                                                                    Cottone, 
    193 F.3d at 555
    .                                                                                                                                                                                                                                                                              Indeed, the Circuit has
    counseled that “[f]or the public domain doctrine to apply, the
    specific information sought must have already been ‘disclosed
    and preserved in a permanent public record.’”                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   See Students
    Against Genocide v. Dep’t of State, 
    257 F.3d 828
    , 836 (D.C. Cir.
    2001).
    On this point, the Court finds the D.C. Circuit’s decision
    in Students Against Genocide particularly instructive.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            That
    case involved classified “spy satellite” and “spy plane”
    Rights, 
    404 F. Supp. 2d at 255
    . Because Leadership Conference
    on Civil Rights dealt with whether an agency properly asserted a
    particular FOIA exemption, 
    id.
     at 254 – not whether the agency
    had waived its right to assert the particular FOIA exemption –
    the Court finds it inapposite to the facts of this case.
    14
    photographs that then-U.S. Ambassador Madeleine Albright showed
    to members of the United Nations Security Council.    
    257 F.3d at 830
    .    The plaintiff organizations in that case argued that
    Ambassador Albright waived the government’s right to invoke the
    pertinent FOIA exemptions (Exemptions 1 and 3) by displaying the
    withheld photographs to the delegates of the foreign governments
    that were members of the Security Council.    
    Id. at 836
    .   The
    Circuit rejected plaintiff’s argument, explaining that:
    The photographs in question here plainly do not fall
    within the [public domain] doctrine. They were not
    released to the general public; only the Security
    Council delegates saw them. In fact, the
    photographs were not “released” at all. Although
    Ambassador Albright displayed them to the delegates,
    she retained custody, and none left the U.N.
    chamber. Hence, there is no “permanent public
    record” of the photographs.
    
    Id. at 836
     (internal citations omitted) (citing Cottone, 
    193 F.3d at 554
    ).    After also rejecting the plaintiff organizations’
    “slight variation[s]” on the public-domain doctrine theme, the
    Circuit concluded that the government had not waived its right
    to withhold the classified photographs from release under FOIA
    by displaying them to the Security Council.    Id. at 836, 837.
    Similarly, in this case, the disputed chapters were not
    released to the general public; rather, they were only shown to
    a select group of organizations – personally invited by the FBI
    - at FBI headquarters.    Although the attendees were permitted to
    view and take notes on the disputed chapters for approximately
    15
    two hours, they were required to return the documents at the end
    of the meeting.    As none of the disputed chapters left FBI
    headquarters, the Court finds that there is no “permanent public
    record” of the disputed chapters in the public domain.
    Plaintiff attempts to circumvent the public-record
    requirement by arguing that “[t]he free and full note taking
    allowed during the meeting . . . provided the meeting
    participants with ample means to make the distributed material
    part of the permanent public record, therefore satisfying this
    standard.”    Pl.’s Combined Opp’n & Cross-Mot. at 19 n.5; see
    also Pl.’s Reply at 9 (arguing that the retention of notes
    created a permanent public record).       The Court finds this
    argument unpersuasive.    Even assuming that plaintiff had “ample
    means” to make a permanent record of the approximately 100 pages
    of the DIOG that was distributed during the two-hour meeting,
    plaintiff has produced no evidence that the redacted sections of
    the disputed chapters are, in fact, in the public domain.
    While the D.C. Circuit has not established “a uniform,
    inflexible rule requiring every public-domain claim to be
    substantiated with a hard copy simulacrum of the sought-after
    material[,]” it has recognized that “it will very often be the
    case that some type of hard copy facsimile will be the only
    practicable way for a FOIA requester to demonstrate that the
    specific information he has solicited has indeed circulated into
    16
    the public domain.”    Cottone, 
    193 F.3d at 555
    .    No such evidence
    has been provided in this case.      Without such documentation, the
    Court lacks confidence that the redacted portions of the
    disputed chapters are “truly public.”      See 
    id.
     (explaining that
    “while the ‘logic of FOIA’ postulates that an exemption can
    serve no purpose once information – including sensitive law-
    enforcement intelligence – becomes public, [courts] must be
    confident that the information sought is truly public and that
    the requester receive no more than what is publicly available
    before we find a waiver” (internal citation omitted)).
    The Court will note that its lack of confidence stems, in
    part, from plaintiff’s repeated complaints regarding its
    inability to conduct a “meaningful review” of the DIOG.      Pl.’s
    SMF ¶ 21.    Indeed, the letter that Muslim Advocates sent to FBI
    Director Mueller immediately following the November 2008
    meetings argued that a “meaningful review” of the DIOG was
    necessary, explaining that “no copies have been released to
    date, ad [sic] participants in the briefings were not allowed to
    examine the 100-page document except during the live sessions,
    neither of which afforded sufficient time for a rigorous
    examination.”    Ex. H to Khera Decl., Docket No. 16-15.
    Plaintiff reiterated those concerns in its FOIA request, in
    which it complained that participants in the November 2008
    meetings “were allowed only limited time to examine the 100-page
    17
    document, which was insufficient for a meaningful review.”
    Def.’s Ex. 2, Docket No. 12-8.                                                                                 As the participants in the
    November meetings lacked sufficient time for a “rigorous
    examination” or “meaningful review” of the disputed chapters,
    the Court is not persuaded – absent some evidence to the
    contrary – that the note-taking participants assembled a
    permanent public record that “duplicates that being withheld.”
    Public Citizen, 
    11 F.3d at 201
    .7
    7
    If there was a permanent public record of the disputed
    chapters then plaintiff would not have had to file a FOIA
    request in order to conduct a meaningful review of the material.
    See Assassination Archives and Research Ctr. v. Central
    Intelligence Agency, 
    334 F.3d 55
    , 60 n.6 (D.C. Cir. 2003) (“[A]s
    a practical matter waiver under [the public-domain doctrine]
    yields the FOIA plaintiff little new information. Indeed, if a
    plaintiff can establish that the specific records he seeks have
    become ‘freely available, there would be no reason to invoke the
    FOIA to obtain access to the information.’” (quoting and
    discussing Davis v. Dep’t of Justice, 
    968 F.2d 1276
    , 1279-80
    (D.C. Cir. 1992)) (internal citations omitted)). Although
    plaintiff contends that this “broad view of the public domain
    doctrine renders FOIA meaningless[,]” Pl.’s Reply at 10, the
    Court disagrees. As noted above, the public-domain doctrine is
    premised upon the logic that a FOIA exemption can no longer
    serve its purpose when there is a permanent public record of the
    requested information. See Cottone, 
    193 F.3d at 554
    . The Court
    is not persuaded, however, that the application of the public-
    domain doctrine in this case – a case where a FOIA exemption can
    still serve its purpose because the information requested is not
    truly public - renders FOIA meaningless. See Students Against
    Genocide, 
    257 F.3d at 836
     (“This circuit has held that the
    government may not rely on an otherwise valid exemption to
    justify withholding information that is already in the ‘public
    domain.’ We have noted, however, that while the logic of FOIA
    postulates that an exemption can serve no purpose once
    information . . . becomes public, we must be confident that the
    information sought is truly public and that the requester
    18
    The Court, therefore, finds that plaintiff has failed to
    meet its “initial burden of pointing to specific information in
    the public domain that appears to duplicate that being
    withheld.”                                                                                                                        Afshar, 
    702 F.2d at 1130
    ; see also, e.g., Davis, 
    968 F.2d at 1280
     (“[T]o obtain portions of tapes alleged to be in
    the public domain, [the FOIA applicant] has the burden of
    showing that there is a permanent public record of the exact
    portions he wishes. It does not suffice to show - as he has done
    - that some of the tapes were played to shift the burden to the
    government. [The FOIA applicant] has not satisfied his burden to
    point to specific information in the public domain.”).8
    Accordingly, plaintiff’s motion for summary judgment is DENIED.
    receive no more than what is publicly available before we find a
    waiver.” (internal citations and quotation marks omitted)); cf.
    Prison Legal News v. Exec. Office for United States Attys., 
    628 F.3d 1243
    , 1253 (10th Cir. 2011) (“The public domain doctrine is
    limited and applies only when the applicable exemption can no
    longer serve its purpose. Given that the public domain doctrine
    nowhere appears in the statutory text of FOIA, only the failure
    of an express exemption to provide any protection of the
    interests involved could justify its application.”).
    8
    Plaintiff also argues that “this Court should apply a less
    deferential waiver standard for material withheld under
    Exemption 7(E), and not the national security standard developed
    under Exemption 1.” Pl.’s Combined Opp’n and Cross-Mot. at 23.
    The Court finds this argument unpersuasive for several reasons.
    First, the D.C. Circuit has never limited application of the
    public-domain doctrine to cases involving national security,
    but, instead, has applied it in several non-national security
    contexts. See, e.g., Cottone, 
    193 F.3d at
    554 (citing cases
    that apply the public-domain doctrine in the context of FOIA
    Exemptions 1, 3, 4, and 7(C)). The Court will nevertheless
    19
    B.                                                    Exemption 7(E)
    Having found that no waiver occurred, the Court must now
    determine whether the agency properly withheld material from 52
    note, however, that “the FBI’s rationale for withholding
    portions of the DIOG is directly intertwined with concerns
    regarding national security. . . . In considering the risks of
    widespread disclosure of certain DIOG provisions, the FBI
    explicitly found that concerns about national security and
    counterintelligence issues counseled withholding.” Def.’s
    Combined Opp’n & Reply at 13 (internal citations omitted).
    Therefore given both the “circumstances of prior disclosure” –
    in which a small group of civil rights and civil liberties
    groups were invited to FBI headquarters and given approximately
    two hours to review and give feedback to the FBI on the civil
    liberty, privacy, and civil rights concerns of the FBI’s
    domestic investigation guidelines - and “the particular
    exemption[] claimed” – i.e., Exemption 7(E)’s protection of
    information compiled for law enforcement purposes, the Court
    finds that application of the public-domain doctrine is
    appropriate in this case. Carson v. U.S. Dep’t of Justice, 
    631 F.2d 1008
    , 1015 n.30 (D.C. Cir. 1980).
    The Court will also note its disagreement with plaintiff’s
    contention that this Court “should follow the strong presumption
    of disclosure under FOIA in fashioning a test for waiver under
    7(E) that results in a narrow exemption from disclosure.” Pl.’s
    Reply at 4 (citing Wolf, 
    473 F.3d at 374
    ). In Wolf, the D.C.
    Circuit stated as follows: “The FOIA mandates broad disclosure
    of government records to the public, subject to nine enumerated
    exemptions. Given the FOIA’s broad disclosure policy, the
    United States Supreme Court has ‘consistently stated that FOIA
    exemptions are to be narrowly construed.’” 
    473 F.3d at 374
    (internal citations omitted). Despite plaintiff’s arguments to
    the contrary, the Court is not persuaded that FOIA’s broad
    presumption in favor of disclosure is applicable in the waiver
    context. Indeed, the Court finds its obligation to narrowly
    construe FOIA exemptions in favor of requiring an agency to
    disclose information that is being improperly withheld,
    fundamentally different than creating a less stringent waiver
    standard whereby an agency loses the right to assert an
    otherwise applicable FOIA exemption (and is thereby required to
    disclose information that is not truly public).
    20
    pages of the DIOG pursuant to Exemption 7(E).      As noted above,
    Exemption 7(E) protects records or information compiled for law
    enforcement purposes from disclosure “to the extent that the
    production of such law enforcement records or information . . .
    would disclose techniques and procedures for law enforcement
    investigations or prosecutions, or would disclose guidelines for
    law enforcement investigations or prosecutions if such
    disclosure could reasonably be expected to risk circumvention of
    the law.”   
    5 U.S.C. § 552
    (b)(7)(E).     Courts have held that
    information pertaining to law enforcement techniques and
    procedures is properly withheld where disclosure reasonably
    could lead to circumvention of laws or regulations.      See, e.g.,
    Skinner v. Dep’t of Justice, 
    744 F. Supp. 2d 185
    , 214 (D.D.C.
    2011) (citing cases).   “[A] highly specific burden of showing
    how the law will be circumvented” is not required; instead,
    “exemption 7(E) only requires that [the agency] ‘demonstrate[]
    logically how the release of [the requested] information might
    create a risk of circumvention of the law.’”     Mayer Brown LLP v.
    IRS, 
    562 F.3d 1190
    , 1994 (D.C. Cir. 2009) (quoting PHE, Inc. v.
    Dep’t of Justice, 
    983 F.2d 248
    , 251 (D.C. Cir. 1993)).
    Defendant asserts Exemption 7(E) in order to “protect
    information consisting of special internal investigatory
    techniques and procedures that are used by the FBI . . . [that]
    if release[d] could reasonably be expected to give anyone with
    21
    that particular knowledge the ability to circumvent the law.”
    Declaration of John S. Pistole, Docket No. 13-5 (“Pistole
    Decl.”) ¶ 30.                                        Defendant explains that “revelation of [the
    redacted material] could enable the targets of these techniques
    to avoid detection or develop countermeasures to circumvent the
    ability of the FBI to effectively use this important national
    security law enforcement technique.”                                                                                                   Pistole Decl. ¶ 30.9
    With respect to the 52 pages of redactions at issue in this
    case, defendant has submitted an affidavit that specifically
    identifies ten categories of information involving the FBI’s
    techniques and procedures, which it avers, “would cause harm to
    FBI’s criminal and national security investigations” if
    released.                              See Def.’s Combined Opp’n & Reply at 5; Pistole Decl.
    ¶ 7.                 Those categories are: (i) information identifying the
    contents of particular file numbers, forms, and databases;
    (ii) information about the FBI’s operational directives;
    9
    Defendant also avers that “[t]he FBI’s rationales for
    withholding this information must be understood in the larger
    context of the current security and criminal prosecution
    climate. In addition to combating the criminal acts of
    sophisticated illicit enterprises (such as organized crime
    syndicates and drug cartels), the FBI is also charged with
    protecting the nation from security risks posed by individuals,
    organizations (such as terrorist groups), and foreign nations
    that seek to harm the United States. The FBI’s public
    disclosure of information is carefully scrutinized by the
    enemies of the United States. Intelligence services and
    terrorists use open-source information to gather intelligence
    about United State’s capabilities and methods. . . .” Pistole
    Decl. ¶ 8.
    22
    (iii) specific scenarios in which specific techniques are
    authorized; (iv) approval limitations on techniques or
    procedures that may be used in certain types of investigations;
    (v) identification of obscure capacities and investigative
    techniques; (vi) the scope of sensitive investigative matters;
    (vii) information on the duration for which particular actions
    are authorized; (viii) details about undisclosed participation;
    (ix) information concerning the FBI’s collection and/or analysis
    of information; and (x) certain terms and definitions.      See
    Def.’s Combined Opp’n & Reply at 5; see also Pistole Decl. ¶ 7.
    In its affidavit, defendant provides descriptions of each of
    these categories and discusses how release of the information
    within that particular category could create a risk of
    circumvention of the law.    See generally Pistole Decl.; see also
    Def.’s Mot. 6-22.
    In its opposition brief, Muslim Advocates does not
    challenge the applicability of Exemption 7(E) nor does it
    challenge the rationale for any of the categories of redactions.
    See generally Pl.’s Combined Opp’n & Cross-Mot. at 27-34.
    Instead, plaintiff more generally responds by reprising its
    waiver argument, asserting that “the same facts supporting a
    finding of waiver at the very least call into question whether
    the information the FBI seeks to protect is sufficiently
    ‘unknown to the public’ to qualify for Exemption 7(E).”      Pl.’s
    23
    Combined Opp’n & Cross-Mot. at 27; see also Pl.’s Reply at 12
    (“The Department’s own actions in holding the meetings without
    confidentiality restrictions refute its current claim that
    disclosure of the materials risks circumvention of the law.”).
    Plaintiff then points to “numerous press reports about the FBI’s
    infiltration of mosques and use of undercover agents or
    confidential informants to gather information from members of
    ethnic or religious communities,” and argues that those
    materials create “a material issue of fact regarding whether the
    material claimed exempt is generally known to the public such
    that the FBI should not be granted summary judgment.”                                                                                                                                              Pl.’s
    Combined Opp’n & Cross-Mot. at 29-30.10
    The Court finds these arguments unpersuasive.                                                                                                                          With respect
    to plaintiff’s waiver argument, the Court agrees with defendant
    that “[t]here is a difference between showing the contested DIOG
    provisions to a limited audience of a handful of representatives
    of particular public interest groups and generally disclosing
    the actual document itself to the public at large.”                                                                                                                                         Def.’s
    10
    Plaintiff also argues that “[t]he FBI is not entitled to
    summary judgment for the additional and independent reason that
    it errs in baldly attempting to deny the significant public
    interest in the DIOG – a public interest that it has repeatedly
    recognized.” Pl.’s Opp’n & Cross-Mot. at 31. While the Court
    is sensitive to plaintiff’s frustration regarding its inability
    to obtain an unredacted copy of the DIOG, the Court is not
    persuaded that that the FBI’s purported minimization of “the
    strong public interest in releasing the DIOG to the public” is
    an independent ground upon which to deny summary judgment.
    Pl.’s Opp’n & Cross-Mot. at 31.
    24
    Combined Opp’n & Reply at 17.                                                                                                                                                                                                            Because “[d]isclosing the DIOG in
    the way Muslim Advocates now demands would increase the risk
    that criminal elements would either be emboldened to commit
    crimes or structure their activities to evade detection[,]”
    Def.’s Combined Opp’n & Reply at 18, the Court finds that the
    FBI’s limited disclosure at the November 2008 meetings does not
    preclude the agency’s claim of Exemption 7(E) as to the redacted
    material.11                                                                                                                            Nor is the Court convinced that plaintiff’s news
    articles create a genuine issue of material fact regarding
    whether the FBI’s techniques and procedures are sufficiently
    unknown to the public.                                                                                                                                                                                                             Although some information regarding the
    FBI’s use of the particular techniques and procedures discussed
    in the disputed chapters may be known, “[t]here is no principle
    . . . that requires an agency to release all details concerning
    [its] techniques simply because some aspects of them are known
    to the public[.]”                                                                                                                                                                                                Barnard v. Dep’t of Homeland Sec., 
    598 F. Supp. 2d 1
    , 23 (D.D.C. 2009) (rejecting the plaintiff’s argument
    that information regarding particular procedures witnessed by
    11
    See also Def.’s Combined Opp’n & Reply at 18 (“More widely
    distributing the DIOG would allow an opportunity for close
    analysis of the document’s provisions that was not provided at
    the meetings at issue in this matter. . . . [I]mmediately after
    the meetings at issue, Muslim Advocates complained that the
    meetings did not, in fact, allow for careful analysis of the
    DIOG. Making a full public release of the DIOG would allow just
    such a detailed review and would not be limited to entities
    familiar to the FBI.”).
    25
    the plaintiff and others could no longer be withheld); see also,
    e.g., Blanton v. Dep’t of Justice, 
    63 F. Supp. 2d 35
    , 49-50
    (D.D.C. 1999) (finding that public information regarding the
    FBI’s use of polygraph tests, including “[b]ooks that claim to
    reveal its techniques and ways to beat the test,” did not
    require disclosure of the information withheld by the FBI;
    explaining that this public information, “although widely
    available,” did not “indicate the specific methods employed by
    the FBI” (internal quotation marks omitted)).    Because “the
    public does not have specific knowledge of the circumstances in
    which undisclosed participation is or is not allowed in FBI
    investigations or what undisclosed participants are or are not
    allowed to do,” Def.’s Combined Opp’n & Reply at 19, the Court
    is not persuaded that plaintiff’s news articles require the FBI
    to release the redacted portions of the DIOG.
    Therefore, having carefully considered the parties’
    arguments, the agency’s affidavits, as well as the redacted
    materials, the Court hereby GRANTS IN PART AND DENIES IN PART
    the government’s motion for summary judgment.    The Court first
    finds that the government is entitled to summary judgment as to
    the material it withheld in Chapters 5 and 10 of the DIOG.
    Specifically, the Court concludes, based upon the limited amount
    of information withheld from those chapters, that the agency’s
    affidavits, in conjunction with a review of the released
    26
    material and the agency’s index, provides the Court with enough
    context to conclude that the FBI fairly and accurately described
    the withheld material and the potential danger created by its
    release.   The Court is not so persuaded, however, with respect
    to Chapter 16.    That chapter is entirely redacted with the
    exception of the opening paragraph and Section 16.1.A.     See
    Docket No. 12-4, DIOG 253 - DIOG 266.     Although the agency’s
    affidavit establishes the general applicability of Exemption
    7(E) to the withheld material, see Pistole Decl. ¶¶ 25, 45, the
    Court finds that the affidavit is not sufficiently detailed to
    allow this Court to undertake a meaningful assessment of the
    redacted material.    Therefore, in light of plaintiff’s
    objections regarding the “nearly wholesale redaction” of Chapter
    16, see Pl.’s Reply at 12, as well as the extremely unusual
    facts of this case, the Court finds it appropriate to require
    the government to submit a more specific affidavit providing
    additional details in support of its extensive redactions in
    this chapter.    Accordingly, the Court hereby DENIES defendant’s
    motion for summary judgment as to Chapter 16 without prejudice
    pending receipt of this additional affidavit.     If necessary, the
    government may submit the declaration ex parte.     See, e.g.,
    Pistole Decl. ¶ 31 (explaining that its affidavit contains “as
    much information as the FBI can provide about the redacted
    material without potentially increasing the risk that FBI
    27
    techniques or procedures will be circumvented or potential
    lawbreakers will be encouraged to engage in illegal
    activities”).12                                           This supplemental affidavit shall be filed by no
    later than November 30, 2011.
    IV.              CONCLUSION
    For the reasons set forth above, the Court GRANTS IN PART
    AND DENIES IN PART defendant’s motion for summary judgment and
    DENIES plaintiff’s cross-motion for summary judgment.                                                                                                                                              A
    separate Order accompanies this Memorandum Opinion.
    SIGNED:                                              Emmet G. Sullivan
    United States District Court Judge
    November 10, 2011
    12
    Because the Court finds that the FBI has generally
    established that the material redacted from the disputed
    chapters could reasonably be expected to potentially increase
    the risk of circumvention of the law, the Court declines to
    reach defendant’s alternative argument that the redacted
    portions of the DIOG are “categorically exempt” from disclosure
    under Exemption 7(E).
    28
    

Document Info

Docket Number: Civil Action No. 2009-1754

Citation Numbers: 833 F. Supp. 2d 92

Judges: Judge Emmet G. Sullivan

Filed Date: 11/10/2011

Precedential Status: Precedential

Modified Date: 8/31/2023

Authorities (28)

Prison Legal News v. Executive Office for United States ... , 628 F.3d 1243 ( 2011 )

richard-rhoads-v-j-benjamin-mcferran-individually-and-as-director-of , 517 F.2d 66 ( 1975 )

Niagara Mohawk Power Corp. v. United States Department of ... , 169 F.3d 16 ( 1999 )

Assassination Archives & Research Center v. Central ... , 334 F.3d 55 ( 2003 )

John Davis v. United States Department of Justice , 968 F.2d 1276 ( 1992 )

Waterhouse v. District of Columbia , 298 F.3d 989 ( 2002 )

Students Against Genocide v. Department of State , 257 F.3d 828 ( 2001 )

Public Citizen v. Department of State , 11 F.3d 198 ( 1993 )

Consumers' Checkbook, Center for the Study of Services v. ... , 554 F.3d 1046 ( 2009 )

Birchel L. Carson v. U. S. Department of Justice , 631 F.2d 1008 ( 1980 )

American Civil Liberties Union v. United States Department ... , 628 F.3d 612 ( 2011 )

Larson v. Department of State , 565 F.3d 857 ( 2009 )

Wolf v. Central Intelligence Agency , 473 F.3d 370 ( 2007 )

Nassar Afshar v. Department of State , 702 F.2d 1125 ( 1983 )

Phe, Inc. v. Department of Justice , 983 F.2d 248 ( 1993 )

Robert G. Vaughn v. Bernard Rosen, Executive Director, ... , 484 F.2d 820 ( 1973 )

Cottone, Salvatore v. Reno, Janet , 193 F.3d 550 ( 1999 )

Mayer Brown LLP v. Internal Revenue Service , 562 F.3d 1190 ( 2009 )

Leadership Conference on Civil Rights v. Gonzales , 404 F. Supp. 2d 246 ( 2005 )

Barnard v. Department of Homeland Security , 598 F. Supp. 2d 1 ( 2009 )

View All Authorities »