Truthout & Jeffrey Light v. Department of Justice , 968 F. Supp. 2d 11 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
TRUTHOUT and )
JEFFREY LIGHT, )
)
Plaintiffs, )
)
v. ) Civil Action No. 12-1660 (RMC)
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DEPARTMENT OF JUSTICE, )
)
Defendant. )
_________________________________ )
OPINION
Plaintiffs Truthout and Jeffrey Light are suing the Federal Bureau of Investigation
(FBI) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to compel the release of
records concerning the protest movement and encampment known as “Occupy Wall Street.” The
FBI has moved to dismiss or for summary judgment. 1 The motion will be granted.
I. FACTS
Plaintiffs sent to the FBI six FOIA requests for records on the Occupy Wall Street
and other Occupy encampments across the country. They challenge the Government’s response
to five: Request Nos. 1176349-000, 1176937-000 (reopened as 1176937-001), 1177831-000,
1178216-000, and 1191931-000. 2
1
The FBI is a component of the Department of Justice (DOJ). While DOJ is the proper
Defendant here, the only records at issue here are FBI records. For ease of reference, this
Opinion refers to the FBI as the Defendant.
2
Plaintiffs waived any claim regarding Request No. 1182695-000. See Opp’n [Dkt. 13] at 7 n.6.
In addition, Plaintiffs requested seven categories of materials that were withheld that are not
contested. Id. at 9-10.
1
1. Request No. 1176349-000
On October 31, 2011, Plaintiffs sent an email to FBI Headquarters (FBIHQ)
seeking the following materials related to the protest movement known as ‘Occupy Wall Street’”
from August 1, 2011 to October 31, 2011: “all emails, memos, letter[s], audio/video,
transcript[s], reports, Threat Assessments, between FBI personnel, including field agents and
officers, and law enforcement agencies, including but not limited to, local police personnel, CIA
and Department of Homeland.” See Mot. to Dismiss or for Sum. J. (MSJ) [Dkt. 9], Ex. A (Hardy
Decl.) [Dkt. 9-1] ¶ 7; Notice of Exs. to Hardy Decl. [Dkt. 10], Ex. A [Dkt. 10-1] (Oct. 31, 2011
Request). The FBI designated this Request No. 1176349-000 and responded on November 15,
2011, indicating that it had searched its Central Records System (CRS, described below in Part
III. B.) and found no responsive records. Plaintiffs appealed to DOJ’s Office of Information and
Privacy (OIP), and OIP affirmed. See Hardy Decl. ¶¶ 7-11. Despite its initial response, on
January 10, 2013, the FBI released 37 pages in response to Request No. 1176349-000. 3 The FBI
stated that it had located and reviewed 162 pages of records and had withheld certain records
under FOIA Exemptions (b)(1), (b)(3), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E). 4
Hardy Decl. ¶ 12.
2. Request Nos. 1176937-000 and 1176937-001
On October 31, 2011, Plaintiffs submitted their second FOIA request to FBIHQ,
Request No. 1176937-000. This time Plaintiffs sought “all documents, including emails, notes,
memoranda, from the department pertaining to threat assessments of the protest movement
organization known as Occupy Wall Street from August 1, 2011 to October 18, 2011.” Hardy
3
On January 10, 2013, the FBI responded to Request Nos. 1176349-000, 1176937-001,
1177831-000, 1178216-000, 1191931-000. See Ex. F [Dkt. 10-7] (Jan. 10, 2013 Letter).
4
These exemptions are referred to as Exemptions 1, 3, 6, 7A, 7C, 7D, and 7E.
2
Decl. ¶ 13, Ex. G [Dkt. 10-7] (October 31, 2011 Request). As with the first Request, the FBI
sent a letter to Plaintiffs dated November 15, 2011, indicating that it had searched CRS and
found no responsive records. Hardy Decl. ¶ 14. The FBI later re-opened Request No. 1176937-
000, labeling the reopened matter as Request No. 1176937-001. Id. ¶ 15. On January 10, 2013,
the FBI released 24 pages of records in response to Request No. 1176937-001. The FBI had
reviewed 105 pages, but withheld certain records under the same FOIA Exemptions that were
invoked with respect to Plaintiffs’ first FOIA request, Exemptions 1, 3, 6, 7A, 7C, 7D, and 7E.
Id. ¶ 24.
3. Request No. 1177831-000
Plaintiffs submitted their third FOIA request to the FBIHQ on November 16,
2011, No. 1177831-000, asking for “records relating to the Occupy DC and Occupy Wall Street
protests in McPherson Square [in Washington, D.C] and Zucotti Park [in New York City],
respectively.” Id. ¶ 25, Ex. R [Dkt. 10-18] (Nov. 16, 2011 Request). On January 10, 2013, the
FBI responded, releasing 80 pages, after reviewing 288 pages of records, and withholding
information under Exemptions 1, 3, 6, 7A, 7C, 7D, and 7E. Hardy Decl. ¶ 32.
4. Request No. 1178216-000
On November 18, 2011, Plaintiffs sent a fourth FOIA request to the FBI. This
time, they sought to amend their first request, Request No. 1176349-000, to cover documents
regarding all Occupy Wall Street and Occupy Encampments across the country for the period
November 1 through 18, 2011. Hardy Decl. ¶ 33, Ex. X [Dkt. 10-24] (Nov. 18, 2011 Request).
On January 10, 2013, after reviewing 125 pages of records, the FBI released 37 pages in
response to the fourth request. The FBI withheld the balance of the pages exempt under the
same FOIA Exemptions. Id. ¶ 43.
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5. Request No. 1191931-000
Finally, on June 4, 2012, Plaintiffs submitted the fifth request that is the subject of
this litigation. This fifth request, Request No. 1191931-000, sought “all emails, memos, letters,
audio/video, transcripts, reports, including FBI Threat Assessments, written between November
1, 2011 to the present related to the protest movement known as ‘Occupy Wall Street.’” Hardy
Decl. ¶ 48, Ex. JJ [Dkt. 10-36] (June 4, 2011 Request). On January 10, 2013, after reviewing
245 pages of records, the FBI released 61 pages of records in response to the fifth request and
withheld records under the same FOIA Exemptions listed above. Hardy Decl. ¶ 58. Plaintiffs
claimed that an additional two-page record had been released to other FOIA requesters and that
this record also was responsive to the fifth request. The FBI then reexamined the fifth request
and the record and released it to Plaintiffs. See Reply [Dkt. 20] at 1 n.1.
II. LEGAL STANDARD
A. Motion to Dismiss
The FBI asserts two bases for dismissing this suit. First, the FBI contends that
because it conducted an adequate search and released all non-exempt records, this case is moot.
Second, the FBI claims that Plaintiffs have failed to state a claim under FOIA.
1. Lack of Jurisdiction Due to Mootness
The FBI also asserts that the Court lacks jurisdiction because Plaintiffs’ claims are
moot, i.e., the FBI conducted an adequate search and released all non-exempt records. A motion
to dismiss for mootness is properly brought under Federal Rule of Civil Procedure 12(b)(1).
Flores ex rel. J.F. v. District of Columbia, 437 F. Supp. 2d 22, 27 (D.D.C. 2006). That rule
imposes on a court “an affirmative obligation to insure that it is acting within the scope of its
jurisdictional authority.” Jones v. Ashcroft, 321 F. Supp. 2d 1, 5 (D.D.C. 2004). Under the
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Constitution, federal courts are limited to deciding “actual, ongoing controversies.” Honig v.
Doe, 484 U.S. 305, 317 (1988). “Even where the litigation poses a live controversy when filed,
the [mootness] doctrine requires a federal court to refrain from deciding it if ‘events have so
transpired that the decision will neither presently affect the parties’ rights nor have a more-than-
speculative chance of affecting them in the future.’” Clarke v. United States, 915 F.2d 699, 701
(D.C. Cir. 1990) (citations omitted).
Federal Rule of Civil Procedure 12(b)(1) provides that a defendant may move to
dismiss a complaint, or any portion thereof, for lack of subject matter jurisdiction. Fed. R. Civ.
P. 12(b)(1). When reviewing such a motion, a court must review the complaint liberally,
granting the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr
v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). To determine whether it has jurisdiction over
the claim, a court may consider materials outside the pleadings. Settles v. U.S. Parole Comm’n,
429 F.3d 1098, 1107 (D.C. Cir. 2005). No action of the parties can confer subject matter
jurisdiction on a federal court because subject matter jurisdiction is an Article III and a statutory
requirement. Akinseye v. Dist. of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003).
2. Failure to State a Claim
The FBI contends that Plaintiffs failed to state a claim under FOIA because it has
searched for records and released all that are not covered by an Exemption. A motion to dismiss
for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) challenges the
adequacy of a complaint on its face. A complaint must be sufficient to “give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (internal quotation and citation omitted). Although a complaint does
not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
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entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim for relief that is “plausible on
its face.” Id. at 570. Although a court must treat the complaint’s factual allegations as true,
“even if doubtful in fact,” id. at 555, it need not accept as true legal conclusions set forth in the
complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In deciding a motion under Rule
12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the
complaint as exhibits or incorporated by reference, and matters about which the court may take
judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
B. Motion for Summary Judgment
Further, the FBI contends that it is entitled to summary judgment because there is
no genuine dispute as to any material fact and the FBI is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary
judgment is properly granted against a party who “after adequate time for discovery and upon
motion . . . fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, a court must
draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s
evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more
than “[t]he mere existence of a scintilla of evidence” in support of its position. Id. at 252.
FOIA cases are typically and appropriately decided on motions for summary
judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F.
Supp. 477, 481 n.13 (D.D.C. 1980). In a FOIA case, a court may award summary judgment
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solely on the basis of information provided by the department or agency in affidavits or
declarations when the affidavits or declarations describe “the documents and the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C. Cir.
1973) (requiring agencies to prepare an itemized index correlating each withheld document, or
portion thereof, with a specific FOIA exemption and the relevant part of the agency’s
nondisclosure justification). An agency must demonstrate that “each document that falls within
the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt”
from FOIA’s requirements. Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal
quotation and citation omitted).
III. ANALYSIS
A. FOIA Generally
FOIA requires federal agencies to release government records to the public upon
request, subject to nine listed exceptions. See 5 U.S.C. § 552(b); Wolf v. CIA, 473 F.3d 370, 374
(D.C. Cir. 2007). To prevail in a FOIA case, the plaintiff must show that an agency has
(1) improperly (2) withheld (3) agency records. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,
142 (1989); United We Stand America, Inc. v. IRS, 359 F.3d 595, 598 (D.C. Cir. 2004). FOIA
authorizes suit only against federal agencies and the only remedy it provides for the improper
withholding of records is injunctive relief. Kissinger v. Reporters Comm. for Freedom of the
Press, 445 U.S. 136, 150 (1980); see also 5 U.S.C. § 552(a)(4)(B) & (f)(1). Pursuant to the
remedial powers of FOIA, a district court may only order the production of agency records,
nothing more. See, e.g., Kennecott Utah Copper Corp. v. U.S. Dep’t of the Interior, 88 F.3d
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1191, 1203 (D.C. Cir. 1996) (finding FOIA only calls for releasing records to a complainant, not
publishing the records in the Federal Register). Once the requested records have been produced,
there is no longer a case or controversy and the FOIA action becomes moot. See Armstrong v.
Exec. Office of the President, 97 F.3d 575, 582 (D.C. Cir. 1996).
The defendant in a FOIA case must show that its search for responsive records
was adequate, that any exemptions claimed actually apply, and that any reasonably segregable
non-exempt parts of records have been disclosed after redaction of exempt information. See
Sanders v. Obama, 729 F. Supp. 2d 148, 154 (D.D.C. 2010). The adequacy of a search is
measured by a standard of reasonableness and depends on the individual circumstances of each
case. Truitt v. U.S. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990). The question is not
whether other responsive records may exist, but whether the search itself was adequate.
Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994).
Thus, to rebut a challenge to the adequacy of a search, the agency need only show
that “the search was reasonably calculated to discover the requested documents, not whether it
actually uncovered every document extant.” SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1201
(D.C. Cir. 1991) (citing Meeropol v. Meese, 790 F.2d 942, 950-51 (D.C. Cir. 1986)). There is no
requirement that an agency search every record system, but the agency must conduct a good
faith, reasonable search of those systems of records likely to possess the requested records.
Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
An agency may prove the reasonableness of its search by a declaration by
responsible agency officials, so long as the declaration is reasonably detailed and not
controverted by contrary evidence or evidence of bad faith. Military Audit Project, 656 F.2d at
738. An agency affidavit can demonstrate reasonableness by “setting forth the search terms and
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the type of search performed, and averring that all files likely to contain responsive materials (if
such records exist) were searched.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326
(D.C. Cir. 1999). An agency=s declarations are accorded “a presumption of good faith, which
cannot be rebutted by purely speculative claims about the existence and discoverability of other
documents.” SafeCard, 926 F.2d at 1200 (internal citation and quotation omitted); see also id. at
1201 (“Mere speculation that as yet uncovered documents may exist does not undermine the
finding that the agency conducted a reasonable search for them.”). An affiant who is in charge
of coordinating an agency’s document search efforts in response to a plaintiff=s FOIA request is
the most appropriate person to provide a comprehensive affidavit in FOIA litigation. Id. at 1201.
Declarations that contain hearsay in recounting searches for documents are generally acceptable.
Kay v. FCC, 976 F. Supp. 23, 34 n.29 (D.D.C. 1997), aff’d, 172 F.3d 919 (D.C. Cir. 1998)
(Table).
Once an agency has provided adequate affidavits, the burden shifts back to the
plaintiff to demonstrate a lack of a good faith search. See Maynard v. CIA, 986 F.2d 547, 560
(1st Cir. 1993). If a review of the record raises substantial doubt as to the reasonableness of the
search, especially in light of “well-defined requests and positive indications of overlooked
materials,” then summary judgment may be inappropriate. Founding Church of Scientology v.
Nat=l Sec. Agency, 610 F.2d 824, 837 (D.C. Cir. 1979).
FOIA “was not intended to reduce government agencies to full-time investigators
on behalf of requesters.” Judicial Watch, Inc. v. Export-Import Bank, 108 F. Supp. 2d 19, 27
(D.D.C. 2000) (internal quotation omitted). As such, agencies are not required to “organize
documents to facilitate FOIA responses.” Goulding v. IRS, Civ. No. 97-C-5628, 1998 WL
325202, at *5 (N.D. Ill. June 8, 1998) (citing NLRB v. Sears, Roebuck, & Co., 421 U.S. at 161–
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62); see also Blakey v. Dep’t of Justice, 549 F. Supp. 362, 366-67 (D.D.C. 1982) (“FOIA was not
intended to compel agencies to become ad hoc investigators for requesters whose requests are
not compatible with their own information retrieval systems.”), aff’d, 720 F.2d 215 (D.C. Cir.
1983) (Table). In addition, FOIA does not require agencies to create or retain documents.
Moore v. Bush, 601 F. Supp. 2d 6, 15 (D.D.C. 2009). Further, an agency is not required to
undertake a search that is so broad as to be unduly burdensome. Nation Magazine v. U.S.
Customs Serv., 71 F.3d 885, 891 (D.C. Cir. 1995). “[I]t is the requester’s responsibility to frame
requests with sufficient particularity . . . .” Judicial Watch, 108 F. Supp. 2d at 27 (internal
quotation omitted). An agency’s search must be evaluated in light of the request made. The
agency is “not obliged to look beyond the four corners of the request for leads to the location of
responsive documents.” Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996).
B. Scope of Search
The Hardy Declaration makes clear that the FBI conducted good faith, reasonable
searches of the systems of records likely to possess records responsive to Plaintiffs’ requests. In
each instance, the FBI searched CRS, the FBI’s electronic repository for information compiled
for law enforcement purposes as well as administrative, applicant, criminal, personnel, and other
files. Hardy Decl. ¶ 59. CRS is accessed via an Automated Case Support System (ACS) and
General Indices by searching for the subject. Id. ¶ 59-61. ACS consists of Investigative Case
Management, Electronic Case File (ECF), and a Universal Index. Id. ¶ 63. In response to
Plaintiffs’ five disputed FOIA requests, the FBI searched the terms: Occupy
Movement/Northern California, Occupy Oakland, Occupy San Francisco, Occupy Cal, Occupy
UC Davis, OWS, Occupy Wall, Occupy Movement, Occupy Encampment(s), Occupy
McPherson, Occupy Zuccotti Park, Occupy New York City, Occupy DC, Occupy Portland,
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Occupy Sacramento, Occupy Salt Lake City, Occupy Seattle, Occupy Atlanta, Occupy San Jose,
Occupy Boston, Occupy Los Angeles, Occupy Indianapolis, Occupy Baltimore, Occupy St.
Louis, Occupy Cincinnati, Occupy Providence, Occupy Austin, Occupy Denver, Occupy
Eugene, Occupy Philadelphia, Occupy Buffalo, Occupy Las Vegas, Occupy Charlotte, Occupy
Pittsburgh, Occupy Dallas, Occupy Houston, Occupy Chicago, Occupy Washington, Occupy
Washington DC, and Occupy K. The FBI did not find any documents as a result of these
searches. Because the Occupy Movement has been widely publicized, the FBI also conducted
text searches of ECF. Id. ¶ 65-66. Because decisions regarding how to index names within a
document can vary, the text search was more comprehensive. Id. ¶ 66 n.5. As described above,
some responsive records were located and released to Plaintiffs on January 10, 2013.
Plaintiffs protest that the FBI only searched CRS and that it did not search its
Electronic Surveillance (ELSUR) or Physical Surveillance (FISUR) record systems, the FBI’s
email system, or shared drives used by FBIHQ and field offices. The FBI, however, searched
CRS because records responsive to Plaintiffs’ requests would normally be found in this
comprehensive system. Reply, Ex. 1 (Supp. Hardy Decl.) [Dkt. 20-1] ¶¶ 5-6, 10. Also, a search
of CRS includes records at both FBIHQ and field offices, would have identified main files and
cross references, and would have identified files in ELSUR, FISUR, and in shared drives. Id.
¶¶ 6, 9. Given the broad search of CRS and ECF conducted by the FBI, Mr. Hardy determined
that there was no reasonable basis to search any unspecified email system, and such a search
would be unduly burdensome. Id.; see Nation Magazine, 71 F.3d at 891.
Although Plaintiffs did not request a search for any particular field office
“tickler,” they argue that the FBI should have searched for such ticklers. Ticklers are duplicate
files that were created in the past; they contained copies of documents and hand written notations
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and were usually kept by a supervisor. Supp. Hardy Decl. ¶ 10 n.1. Today, the FBI is not
required to create or maintain tickler files. Id. ¶ 10. Moreover, records responsive to the
requests made in this case are normally indexed in CRS. Id. ¶ 8.
The FBI has shown that it conducted searches reasonably calculated to discover
the requested documents. SafeCard, 926 F.2d at 1201; Meeropol, 790 F.2d at 950-51. The FBI
was not required to search every record system; it was only required to conduct a reasonable
search of those systems of records likely to possess the requested information. Oglesby, 920 F.2d
at 68. The FBI’s search of CRS satisfied this standard.
Plaintiffs also complain that the FBI released a two-page document to the
American Civil Liberties Union of Northern California (ACLU-NC) in response to a similar
FOIA request but did not release the document in response to Plaintiffs’ FOIA requests. The FBI
reexamined Plaintiffs’ requests after they complained and determined that it had erroneously
determined that the two pages in question were outside the date range requested. Supp. Hardy
Decl. ¶ 21. Upon realizing its error, the FBI released the document to Plaintiffs. Id. This issue
is now moot.
Further, Plaintiffs insist that there must be documents related to an OWS
demonstration in New York City. They point to an email from the Department of Homeland
Security that included the statement: “The FBI’s New York Field Office’s Duty Agent reported
to me this evening that the OWS crowd wants to stage at 26 Federal Plaza and that signs are
being put up around Lower Manhattan calling for the demo.” Opp’n at 8. Because 26 Federal
Plaza includes the FBI New York Field Office and because the FBI Duty Agent made this report,
Plaintiffs believe that the FBI has responsive records that it failed to release. Plaintiffs’
speculation that additional documents exist does not affect the analysis of the reasonableness of
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the FBI searches. Mr. Hardy’s Declarations are presumed to be in good faith, and they are not
rebutted by speculative claims that other responsive records exist. SafeCard, 926 F.2d at 1200.
Finally, because some of the records were distributed to other FBI offices and
systems, Plaintiffs contend that the FBI was required to search those offices and systems as well.
For example, one record was distributed to: Deputy Assistant Director, Directorate of
Intelligence; Deputy Assistant Director, Criminal Investigative Division; Deputy Assistant
Director, Cyber Division; Editorial Review Unit, Directorate of Intelligence; FBI Intranet; Law
Enforcement Online; Virginia Fusion Center; and Infragard. Opp’n at 9. However, the FBI
searched its comprehensive record system, CRS, because that is the place where responsive
records were most likely to be kept. Supp. Hardy Decl. ¶¶ 5-6, 10-11. A search of CRS would
have located records at the offices listed on the distribution lists. Id. ¶ 11. Accordingly, the
FBI’s search for records in response to Plaintiffs’ requests was adequate under FOIA.
C. Exemptions
Following a reasonable search, an agency may lawfully withhold records that are
exempt from release under FOIA. Although FOIA “strongly favors prompt disclosure, its nine
enumerated exemptions are designed to protect those legitimate governmental and private
interests that might be harmed by release of certain types of information.” August v. FBI, 328
F.3d 697, 699 (D.C. Cir. 2003) (internal quotation omitted). It is clear that “disclosure, not
secrecy, is the dominant objective of the Act.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361
(1976). The exemptions are narrowly construed. Tax Analysts, 492 U.S. at 151.
1. Exemption 3
The FBI withheld certain records under FOIA Exemption 3, 5 U.S.C. § 552(b)(3),
which exempts from disclosure matters occurring before a grand jury and records subpoenaed by
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a grand jury. Plaintiffs assert that Exemption 3 does not exempt the administrative portion of a
subpoena, such as where and when the subpoena was issued, and that the FBI should be required
to segregate this information and release it. The FBI has been very clear that it withheld “only
that information which explicitly discloses matters occurring before a Federal Grand Jury.”
Hardy Decl. ¶ 98. 5 Plaintiffs’ challenge to withholding under Exemption 3 is without merit.
2. Exemption 5
Section 552(b)(5) of FOIA exempts from disclosure “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). Exemption 5 incorporates the privileges that
the Government could assert in discovery in a civil case, including the deliberative process
privilege. Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 321 (D.C. Cir.
2006). To qualify for protection as deliberative process material, a document must be
“predecisional” (that is “generated before the adoption of an agency policy”) and “deliberative”
(that is reflecting “the give-and-take of the consultative process”). Public Citizen, Inc., v. OMB,
598 F.3d 865, 874 (D.C. Cir. 2010) (citations and internal quotation omitted).
The FBI withheld a one-page record consisting of a FOIA analyst’s notes. Hardy
Decl. ¶¶ 105-109; Supp. Hardy Decl. ¶¶ 14-16. The document withheld is deliberative, as it
contains the internal dialogue among FBI personnel about Plaintiffs’ FOIA requests, and it is
predecisional as it predates the final disposition of Plaintiffs’ requests. Supp. Hardy Decl. ¶ 16.
The FBI, thus, properly invoked Exemption 5.
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Plaintiffs point out that the FBI mistakenly designated one document as exempt from
production under Exemption (b)(3)–1, pertaining to grand jury information, when it should have
been listed as exempt under Exemption (b)(3)–2, relating to the Bank Secrecy Act, 12 U.S.C.
§§ 1829b, 1951-59 and 31 U.S.C. §§ 5311-5332. This point is irrelevant, as Plaintiffs do not
challenge withholdings under the Bank Secrecy Act. See Opp’n at 9-10.
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3. Exemptions 6, 7(C), and 7(D)
The FBI withheld information pursuant to Exemptions 6, 7(C), and 7(D), which
exempt certain records from disclosure where disclosure would invade an individual’s personal
privacy or would breach an assurance of confidentiality. See 5 U.S.C. § 552(b)(6), (7)(C),
(7)(D).
Exemption 6 protects from disclosure “personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6). The Exemption 6 analysis has two components: (1) whether the
information at issue is contained in personnel, medical, or similar files and (2) whether
disclosure would constitute a clearly unwarranted invasion of personal privacy. “The term
‘similar files’ is broadly interpreted, such that Exemption 6 protects from disclosure all
information that ‘applies to a particular individual’ in the absence of a public interest in
disclosure.” Lardner v. Dep’t of Justice, 638 F. Supp. 2d 14, 23 (D.D.C. 2009) (quoting U.S.
Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982)), aff’d, 398 F. Appx. 609 (D.C.
Cir. 2010). The threshold is “fairly minimal,” and “[a]ll information which applies to a
particular individual is covered by Exemption 6, regardless of the type of file in which it is
contained.” Washington Post Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d 252, 260
(D.C. Cir. 1982) (quoting Washington Post, 456 U.S. at 602) (internal quotation omitted).
Exemption 6 requires a court to balance the individual’s privacy rights against the
basic purpose of FOIA––“to open agency action to the light of public scrutiny.” Dep’t of the Air
Force v. Rose, 425 U.S. 352, 372 (1976) (internal quotation and citation omitted); see Lepelletier
v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999). The privacy interest at stake belongs to the
individual, not the agency. See Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873,
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875 (D.C. Cir. 1989) (noting an individual’s significant privacy interest “in avoiding the
unlimited disclosure of his or her name and address”). It is the requester’s obligation to
articulate a public interest sufficient to outweigh an individual’s privacy interest, and the public
interest must be significant. Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 172
(2004) (interpreting analogous Exemption 7(C)).
Exemption 7(C) protects from disclosure information in law enforcement records
that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552 (b)(7)(C). Exemption 7(C) allows broad categorical protection of information that
identifies third parties in law enforcement records. See Nation Magazine, 71 F.3d at 896(records revealing subjects, witnesses, and informants in law enforcement investigations are
categorically exempt). Like Exemption 6, Exemption 7(C) calls for balancing “the privacy
interests that would be compromised by disclosure against the public interest in release of the
requested information.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007);
see also Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756
(1989).
With respect to the Court’s inquiry into the privacy interests and public interests
at stake, the analysis under Exemptions 6 and 7(C) is substantially similar. Compare Stern v.
FBI, 737 F.2d 84, 91 (D.C. Cir. 1984) with Reed v. NLRB, 927 F.2d 1249, 1251 (D.C. Cir. 1991).
Generally, the privacy interests of third parties mentioned in law enforcement files are
“substantial,” while the public interest in disclosure of their identities is “insubstantial.”
SafeCard, 926 F.2d at 1205. “[U]nless access to the names and addresses of private individuals
appearing in files within the ambit of Exemption 7(C) is necessary in order to confirm or refute
compelling evidence that the agency is engaged in illegal activity, such information is exempt
16
from disclosure.” Id. at 1206; see Nation Magazine, 71 F.3d at 896. “[T]he only public interest
relevant for purposes of Exemption 7(C) is one that focuses on ‘the citizens’ right to be informed
about what their government is up to.’” Davis v. Dep’t of Justice, 968 F.2d 1276, 1282 (D.C.
Cir. 1992) (quoting Reporters Comm., 489 U.S. at 773). A FOIA requester does not prevail in
his efforts to obtain information about which an agency claims Exemption 6 or 7(C) protection
merely by identifying a public interest. Rather, the public interest in disclosure must be so
compelling that, on balance, it outweighs the individual’s legitimate privacy interests. See
Senate of Puerto Rico v. Dep’t of Justice, 823 F.2d 574, 588 (D.C. Cir. 1987).
Exemption 7(D) protects from disclosure those records or information compiled
for law enforcement purposes that:
could reasonably be expected to disclose the identity of a
confidential source . . . [who] furnished information on a
confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of
a criminal investigation . . . , information furnished by a
confidential source.
5 U.S.C. § 552(b)(7)(D). A source’s confidentiality is determined on a case-by-case basis, and a
court must determine “whether the particular source spoke with an understanding that the
communication would remain confidential.” Dep’t of Justice v. Landano, 508 U.S. 165, 172
(1993) (emphasis in original). “A source is confidential within the meaning of exemption 7(D)
if the source provided information under an express assurance of confidentiality or in
circumstances from which such an assurance could be reasonably inferred.” Williams v. FBI, 69
F.3d 1155, 1159 (D.C. Cir. 1995) (internal quotation and citation omitted). The nature of the
crime investigated and the informant’s relation to it are the most important factors in determining
whether implied confidentiality exists. Landano, 508 U.S. at 179-80.
17
Here, the FBI withheld certain records on the grounds that Exemptions 6, 7(C),
and/or 7(D) applied. Hardy Decl. ¶¶ 112-22. The FBI withheld the names and identifying
information of federal and state law enforcement officers and personnel, id. ¶¶ 113-19, as well as
that of individuals who provided information to the FBI under implied assurances of
confidentiality or who were merely third parties mentioned in the records. Id. ¶¶ 120-22.
Plaintiffs provided executed privacy waivers for nine additional individuals, and asked the FBI to
reprocess the FOIA requests. Opp’n at 12. The FBI agreed and reviewed the records for names
and information associated with the nine individuals. The FBI did not find any additional
records that could be released “as those names do not appear in the material that was processed
as part of [P]laintiffs’ FOIA requests.” Supp. Hardy Decl. ¶ 17. As a result, the FBI has
provided sufficient detailed information to support its application of Exemptions 6, 7(C), and
7(D).
4. Exemption 7(E)
FOIA Exemption 7(E), 5 U.S.C. § 552(b)(7)(E), exempts records compiled for
law enforcement purposes from release when disclosure “would disclose techniques and
procedures for law enforcement investigations or prosecutions, or would disclose guidelines for
law enforcement investigation or prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law.” Exemption 7(E) may be applied to techniques and procedures
that are unknown to the public, Jaffe v. CIA, 573 F. Supp. 377, 387 (D.D.C. 1983), as well as
known techniques and procedures if disclosure might reduce their effectiveness, Coleman v. FBI,
13 F. Supp. 2d 75, 83 (D.D.C. 1998). While an agency may generally describe the nature of the
information withheld, it is not required to describe secret law enforcement techniques, even
generally, if the description would reveal the very information sought to be withheld. Id.18
Plaintiffs demand that the FBI describe the nature of the records it withheld. The
FBI, however, has adequately explained the nature of the records it withheld and its reasons for
doing so. The FBI withheld records that could disclose procedures and techniques it uses in
national security investigations. Hardy Decl. ¶ 132. It also withheld file numbers used in such
investigations because such numbers might reveal investigative interests and priorities. Id. ¶¶
132-33. Further, the FBI refused to disclose the location, identity, and expertise of the
investigating FBI units, as this could allow an individual to avoid or circumvent those locations
and those activities that are the targets of investigation. Id. ¶¶ 135-37. The FBI also withheld:
(1) information contained in FOIA processing notes;
(2) internal nonpublic telephone numbers and web site addresses
used frequently by personnel to exchange investigative
information;
(3) database information and search results;
(4) information collection and analysis information describing
techniques; and
(5) intelligence analyst procedures used by the Central Florida
Intelligence Exchange to conduct national security investigations.
Supp. Hardy Decl. ¶ 18. Release of such information would enable criminals to discover
techniques and procedures and the effectiveness of law enforcement would suffer. Accordingly,
the FBI properly relied upon Exemption 7(E) in withholding certain records.
D. Exclusion of Records Under § 552(c)
Plaintiffs contend that the “FBI must clarify with the Court whether or not it has
excluded any records under 5 U.S.C. § 552(c).” Opp’n at 15. FOIA section 552(c) permits
agencies to treat sensitive law enforcement records as “not subject to the requirements” of FOIA.
This section excludes from disclosure (1) law enforcement records described in 5 U.S.C.
19
§ 552(b)(7)(A); (2) informant records; and (3) certain classified records. 5 U.S.C. § 552(c)(1)-
(3). In other words, where a FOIA requester seeks to confirm the investigatory status of specific
individuals or incidents, § 552(c) permits the Government to provide a “Glomar” response, a
response that neither confirms nor denies that the Government has investigated or is
investigating the individual or the incident. 6 Benavides v. DEA, 968 F.2d 1243, 1246-47 (D.C.
Cir. 1992), modified on reh’g on other grounds, 976 F.2d 751 (D.C. Cir. 1992). Section 552(c)
“is a narrow and specific statutory authority for criminal law enforcement agencies to act on the
principal that ‘an agency may refuse to confirm or deny the existence of records where to answer
the FOIA inquiry would cause harm cognizable under a FOIA exemption.’” Id. (quoting
Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)). Section 552(c) provides an “exclusion,”
and not merely an “exemption” from FOIA. “An ‘exclusion’ is different from an exemption in
that the Government need not even acknowledge the existence of excluded information.”
Steinberg v. DOJ, Civ. No. 93-2409, 1997 WL 349997, at *1 (D.D.C. June 18, 1997).
DOJ policy provides that when the Government provides a Glomar response, it
must present a declaration to the court for in camera review. “[W]herever a FOIA plaintiff raises
a distinct claim regarding the suspected use of an exclusion, the government routinely will
submit an in camera declaration addressing that claim, one way or the other.” DOJ, Att’y Gen.’s
Mem. on the 1986 Amendments to FOIA, § G (available at http://www.justice.gov/
oip/86agmemo.htm), § 5 “Additional Procedural Considerations” (last viewed on July 5, 2013);
6
In Phillippi v. CIA, 546 F.2d 1009, 1011-12 (D.C. Cir. 1976), the CIA refused to confirm or
deny existence of secret vessel, the “Hughes Glomar Explorer.” The nature of its response is
now known as the “Glomar” response. See Nation Magazine, 71 F.3d at 893 (Glomar response
proper “if confirming or denying the existence of the records would associate the individual
named in the request with criminal activity”); Enzinna v. Dep’t of Justice, No. 97-5078, 1997
WL 404327, at *2 (D.C. Cir. June 30, 1997) (agency refusal to confirm or deny existence of
responsive records appropriate because acknowledging existence of records would associate
witnesses with criminal investigation).
20
see Mobley v. CIA, Civ. Nos. 11-2072 & 11-2073 (BAH), 2013 WL 452932, at *41-42 (D.D.C.
Feb. 7, 2013) (pursuant to DOJ policy, Government presented an ex parte in camera submission
for court review of the possible invocation of a § 552(c) exclusion). Thus, where a §522(c)
exclusion is used, the in camera declaration asserts that it was justified; where a §522(c)
exclusion is not used, the in camera declaration states that fact.
DOJ complied with this policy here. In response to Plaintiffs’ demand for
confirmation regarding whether the FBI excluded any records under 5 U.S.C. § 552(c), DOJ
presented ex parte, for in camera review, the Ex Parte Declaration of Mr. Hardy. As Mr. Hardy
explained:
Because the very purpose of the exclusions is to keep a requester
from knowing, for example, whether an individual is an informant
unless the informant’s status as an informant has been officially
confirmed, 5 U.S.C. § 552(c)(2), it is vital to the integrity of the
application of exclusions that requesters not be able to deduce
whether an exclusion was or was not employed at all in any given
case.
Third Hardy Decl. [Dkt. 21-1] ¶ 5.
The Court has reviewed Plaintiffs’ claim and the ex parte Hardy Declaration and
has determined that any § 552(c) exclusion, if employed, was amply justified. Plaintiffs’
objections are unavailing.
E. Segregability
If a record contains information that is exempt from disclosure, any reasonably
segregable information must be released after redacting the exempt portions, unless the non-
exempt portions are inextricably intertwined with exempt portions. 5 U.S.C. § 552(b); see
Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).
A court errs if it “simply approve[s] the withholding of an entire document without entering a
finding on segregability, or the lack thereof.” Powell v. Bureau of Prisons, 927 F.2d 1239, 1242
21
n.4 (D.C. Cir. 1991). Plaintiffs argue that the FBI failed to release reasonably segregable
material.
Certain redacted materials were provided to Plaintiffs and other materials were
withheld in full. See Hardy Decl. ¶ 68 (the FBI sought to achieve “maximum disclosure” by
releasing all material in the public domain and all reasonably segregable material); id. ¶¶ 69-72
(citing Ex. SS as emblematic of FBI’s description of documents by Bates number and by the
applicable FOIA exemption). Material that was withheld was exempt from disclosure or was so
intertwined with protected material that segregation was not possible. Id. ¶¶ 69, 72. The Court
has reviewed the Government’s declarations and finds that these submissions adequately specify
“which portions of the document[s] are disclosable and which are allegedly exempt.” See
Vaughn, 484 F.2d at 827. Further, with respect to the records withheld in full, the Court concurs
that any nonexempt portions are so intertwined with exempt portions that no portion can be
disclosed.
F. Timeliness of the FBI’s Response
The FBI granted Plaintiffs’ request for expedited processing, which requires
release “as soon as practicable.” 5 U.S.C. § 552(a)(6)(E)(iii). Even so, Plaintiffs allege that the
FBI’s responses to their FOIA requests were not timely, and that the FBI acted arbitrarily by
responding first to later FOIA requesters. For instance, in response to a March 8, 2012 FOIA
request from the ACLU-NC, the FBI released thirteen pages within five months, on August 24,
2012. In response to a November 16, 2011 FOIA request from the Partnership for Civil Justice
Fund (PCJF), the FBI released ninety-nine pages within thirteen months, on December 18, 2012.
Among the records released to ACLU-NC and PCJF were certain records that also were
responsive to Plaintiffs’ requests.
22
As described above, Plaintiffs made six FOIA requests between October 31, 2011
and June 4, 2012, and the FBI issued its final release of records to all requests on January 10,
2013, i.e. within approximately seven months of Plaintiffs’ fifth request and within
approximately thirteen months of their first request. While these time frames are not materially
different from the five and thirteen months in which the FBI responded to the PCJF and the
ACLU-NU, Plaintiffs mischaracterize the response to their requests as unreasonably delayed and
ask the Court to refer the FBI to the Office of Special Counsel for investigation. See Opp’n at
16-18. Plaintiffs’ claim of wrongful delay and arbitrary action by the FBI is unfounded. The
ACLU-NC and the PCJF each made only one FOIA request, while Plaintiffs made six separate
FOIA requests. Further, many of Plaintiffs’ requests contained specific criteria, such as date
parameters, thereby compelling the FBI to take additional time to sort through its records to
remove nonresponsive records. In addition, the FBI took the extra step of conducting text
searches of the ECF to identify potentially responsive material. Hardy Decl. ¶ 66; Supp. Hardy
Decl. ¶ 7. The FBI cannot be faulted for being thorough in its searches. Plaintiffs’ request for a
special investigation is baseless.
IV. CONCLUSION
For the reasons set forth above, Defendant’s motion to dismiss or for summary
judgment [Dkt. 9] will be granted. Judgment will be entered in favor of Defendant. A
memorializing Order accompanies this Memorandum Opinion.
Date: July 17, 2013
/s/
ROSEMARY M. COLLYER
United States District Judge
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