Shapiro v. U.S. Department of Justice , 37 F. Supp. 3d 7 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
RYAN NOAH SHAPIRO, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-595 (RMC)
)
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
)
OPINION
Ryan Noah Shapiro sues the Federal Bureau of Investigation (FBI) under the
Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act (PA), 5 U.S.C. § 552a,
to compel the release of records concerning “Occupy Houston,” an offshoot of the protest
movement and New York City encampment known as “Occupy Wall Street.” Mr. Shapiro seeks
FBI records regarding Occupy Houston generally and an alleged plot by unidentified actors to
assassinate the leaders of Occupy Houston. FBI has moved to dismiss or for summary
judgment. 1 The Motion will be granted in part and denied in part.
I. FACTS
Ryan Noah Shapiro is a doctoral candidate in the Department of Science,
Technology, and Society at the Massachusetts Institute of Technology. Compl. [Dkt. 1] ¶ 2. In
early 2013, Mr. Shapiro sent three FOIA/PA requests to FBI for records concerning Occupy
Houston, a group of protesters in Houston, Texas, affiliated with the Occupy Wall Street protest
movement that began in New York City on September 17, 2011. Id. ¶¶ 8-13. Mr. Shapiro
1
FBI is a component of the Department of Justice (DOJ). While DOJ is the proper defendant in
the instant litigation, the only records at issue here are FBI records. For ease of reference, this
Opinion refers to FBI as Defendant.
1
explained that his “research and analytical expertise . . . [concerns] conflicts at the nexus of
American national security, law enforcement, and political dissent,” and that he planned to
“disseminate . . . urgent information [regarding Occupy Houston] to the public.” Mot. to
Dismiss or for Summ. J. (MSJ) [Dkt. 9], Decl. of David M. Hardy (Hardy Decl.) [Dkt. 9-1], Ex.
A (Request No. 1205920-000) [Dkt. 9-2] at 2. 2 FBI processed and responded to these requests,
labeling them Request Nos. 1205920-000, 1206188-000, and 1205920-001. Mr. Shapiro now
challenges FBI’s response to each Request.
A. Request Nos. 1205920-000 and 1206188-000
By letters dated January 4, 2013, Mr. Shapiro sent two requests to FBI seeking
materials related to the Occupy protests in Houston, Texas. 3 The first, which FBI designated as
Request No. 1205920-000, sought:
any and all records that were prepared, received, transmitted,
collected and/or maintained by . . . FBI, the Terrorist Screening
center, the National Joint Terrorism Task Force, or any Joint
Terrorism Task Force relating or referring to a potential plan to
‘gather intelligence against the leaders of [Occupy Wall Street-
related protests in Houston, Texas] and obtain photographs, then
formulate a plan to kill the leadership [of the protests] via
suppressed sniper rifles.’
2
David M. Hardy, Section Chief of the Record/Information Dissemination Section (RIDS),
Records Management Division (RMD) of FBI, Hardy Decl. ¶ 1, provided two declarations in
support of FBI’s Motion, see Hardy Decl.; Reply [Dkt. 13], Ex. 1 (Supp. Hardy Decl.) [Dkt. 13-
1].
3
Mr. Shapiro sent three iterations of both Requests to FBI. On December 31, 2010, he sent two
requests. Compl. ¶¶ 16-19. On January 4, 2013, Mr. Shapiro withdrew those requests, and
substituted a second set of requests with a minor correction. Id. ¶¶ 20-21. Concerned that his
failure to sign the requests would impede FBI’s expedited processing of them, Mr. Shapiro re-
sent the two January 4 requests on that same date. Except for the addition of his signature, this
third submission was identical to the second set. Id. ¶ 22. Mr. Shapiro asked FBI to respond
only to the third submission of the two requests. Id. ¶¶ 24-25.
2
See Request No. 1205920-000 at 1 (alterations and emphasis in original). Mr. Shapiro stated that
the alleged assassination plan was discussed in other FBI documents, which had been released
through a prior FOIA request. See id. at 1. He attached five pages from the aforementioned FBI
documents to his request, all of which were heavily redacted. See id. at 11-15. Characterizing
his request as presented under FOIA and PA, id. at 1, Mr. Shapiro demanded that FBI search
several filing systems, including its Electronic Surveillance (ELSUR) indices, id. at 4-7. He also
requested expedited processing and a fee waiver. Id. at 2, 9-10.
Mr. Shapiro’s second request for records, which FBI designated Request No.
1206188-000, asked for:
any and all records that were prepared, received, transmitted,
collected and/or maintained by . . . FBI, the Terrorist Screening
Center, the National Joint Terrorism Task Force, or any Joint
Terrorism Task Force relating or referring to Occupy Houston,
any other Occupy Wall Street-related protests in Houston, Texas,
and law enforcement responses to the above protests.
See Hardy Decl., Ex. E (Request No. 1206188-000) [Dkt. 9-2] at 1 (emphasis in original). Mr.
Shapiro stated that Request No. 1206188-000 was intended to include any assassination plots
against leaders of Occupy Wall Street in Houston. Id. at 1. Again, he characterized the request
as presented under FOIA and PA, demanded that FBI search its ELSUR indices, among other
indices, and sought expedited processing and a fee waiver. Id. at 1-2, 5-7, 9-10.
On February 28, 2013, FBI responded to both Requests with similar letters. Each
letter stated that FBI had searched its Central Records System (CRS), and those searches had not
located any “main file records responsive to the FOIA” request. See Hardy Decl., Ex. B [Dkt. 9-
2] at 1 & Ex. F [Dkt. 9-2] at 1. FBI informed Mr. Shapiro that he either could provide additional
3
information, for which FBI would conduct an additional search, or could appeal its response to
DOJ’s Office of Information Policy (OIP) within sixty days.
Mr. Shapiro chose to appeal. See Hardy Decl., Ex. C [Dkt. 9-2] & Ex. G [Dkt. 9-
2]. It appears from the record that OIP never decided the appeal on Request No. 1205920-000
before it closed the file on June 26, 2013. Hardy Decl. ¶ 9 & n.3. Conversely, with respect to
Request No. 1206188-000, it is clear that OIP affirmed FBI’s response and informed Mr. Shapiro
of its decision on May 24, 2013. Hardy Decl., Ex. I [Dkt. 9-2].
FBI subsequently reexamined the search that it had conducted for records
responsive to Request No. 1206188-00. While FBI first had interpreted Request No. 1206188-
000 as seeking only law enforcement responses to protests in Houston related to Occupy Wall
Street, it revised its interpretation and conducted an additional search for all records referring to
Occupy Houston. The additional search produced twelve pages of responsive records. On June
24, 2013, FBI informed Mr. Shapiro that it was releasing, in part, four of the twelve pages of
responsive records, and entirely withholding the remaining eight pages. FBI cited FOIA
Exemptions (b)(1), (b)(3), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E) as the bases for
withholding information contained in these records. Hardy Decl. ¶ 15; see also Hardy Decl., Ex.
J [Dkt. 9-2].
B. Request No. 1205920-001
Mr. Shapiro submitted a third, dual FOIA/PA Request to FBI on February 3,
2013. This Request sought “any and all records that were prepared, received, transmitted,
collected and/or maintained by . . . FBI, the Terrorist Screening Center, the National Joint
Terrorism Task Force, or any Joint Terrorism Task Force relating or referring to the information
4
source redacted (by . . . FBI) and highlighted (by [Mr. Shapiro]) in” a five-page document which
Mr. Shapiro attached to his Request. Hardy Decl. ¶ 16 & n.5; see also Hardy Decl., Ex. K
(Request No. 1205920-001) [Dkt. 9-2]. Notably, the attached document was identical to the
document that Mr. Shapiro had attached to Request No. 1205920-000. The only difference was
that Mr. Shapiro had highlighted the following paragraphs:
An identified REDACTED as of October planned to engage in
sniper attacks against protestors [sic] in Houston, Texas, if deemed
necessary. An identified REDACTED had received intelligence
that indicated the protesters in New York and Seattle planned
similar protests in Houston, Dallas, San Antonio, and Austin,
Texas. REDACTED planned to gather intelligence against the
leaders of the protest groups and obtain photographs, then
formulate a plan to kill the leadership via suppressed sniper rifles.
(Note: protests continued throughout the weekend with
approximately 6000 persons in NYC. ‘Occupy Wall Street’
protests have spread to about half of all states in the US, over a
dozen European and Asian cities, including protests in Cleveland
10/6-8/11 at Willard Park which was initially attended by hundreds
of protestors [sic]). . . .
On 13 October 2011, writer sent via email an excerpt from the
daily REDACTED regarding FBI Houston’s REDACTED to all
IAs, SSRAs and SSA REDACTED. This REDACTED identified
the exploitation of the Occupy Movement by REDACTED
interested in developing a long-term plot to kill local Occupy
leaders via sniper fire.
Id. at 12-16. As before, Mr. Shapiro asked that the ELSUR indices be searched, and that he
receive expedited processing and a fee waiver. Id. at 2, 5, 9-10. This letter was labelled by FBI
as Request No. 1205920-001. See Hardy Decl., Ex. L [Dkt. 9-2].
FBI responded on March 8, 2013, telling Mr. Shapiro that the records sought
under Request No. 1205920-001 pertained to another individual, and that “disclosure of third
party information is considered an unwarranted invasion of privacy.” Id. at 1. FBI further
5
explained that records containing third-party information are exempt from disclosure unless there
is “proof of death or a privacy waiver from the individual[] involved.” Id. FBI also advised Mr.
Shapiro that he had sixty days from the date of the letter to appeal to OIP. Id.
By letter dated March 13, 2013, Mr. Shapiro appealed FBI’s response to Request
No. 1205920-001. See Hardy Decl., Ex. M [Dkt. 9-2]. Before OIP reached a decision regarding
Mr. Shapiro’s appeal, 4 FBI conducted an additional search for records concerning the
highlighted portions of Request No. 1205920-001. Hardy Decl. ¶ 20. This search identified five
pages of responsive records, of which FBI released one page in part via a letter dated June 24,
2013. See Hardy Decl., Ex. O [Dkt. 9-2]. 5 FBI told Mr. Shapiro that it was withholding
information pursuant to FOIA Exemptions (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E).
Hardy Decl. ¶ 20.
C. Overview of the Document Production
In total, FBI identified seventeen pages of responsive records, producing five of
those pages in part and entirely withholding twelve pages. FBI Bates-numbered the produced
records, stamping each page sequentially Shapiro-1 through Shapiro-17. 6 Id. ¶¶ 37, 39. Mr.
4
OIP closed its file on the appeal of Request No. 1205920-001 on June 26, 2013. Hardy Decl.
¶ 19 n.6.
5
The subject line of the June 24, 2013 letter references Request No. 1205920-002, which
appears to be a scrivener’s error. The Court will refer to this letter as regarding Request No.
1205920-001.
6
Mr. Shapiro grouses that in “aggregating all of the documents responsive to [his] three requests
and Bates-numbering them consecutively,” FBI has made it “impossible to tell which documents
are responsive to which request.” Opp’n [Dkt. 10] at 33. His complaint is unjustified. In
separate letters, FBI clearly identified to which Request each document responds. See Exs. J &
O. Were there any possible confusion, Mr. Hardy’s Supplemental Declaration rectifies it. Mr.
Hardy confirms that the twelve pages produced in response to Request No. 1206188-000 are
Bates-stamped Shapiro-1 through -12, and the five pages produced in response to Request No.
1205920-001 are Bates-stamped Shapiro-13 through -17. Supp. Hardy Decl. ¶ 31.
6
Hardy declares that FBI “sought to achieve maximum disclosure consistent” with FOIA, and
therefore produced redacted pages where possible. Id. ¶ 38. Accordingly, for records produced
in part, FBI annotated the redacted information with codes that indicated the claimed FOIA
Exemptions. See, e.g., Hardy Decl., Ex. P (Doc. Production) [Dkt. 9-2] at Shapiro-9. In his
Declarations, Mr. Hardy provides detail, such as the statutory provision at issue for each claimed
Exemption and the applicable case law, and includes footnotes that cross-reference the relevant
Bates numbers. See, e.g., Hardy Decl. ¶¶ 57-60. If FBI withheld a page in its entirety, the page
was replaced with a “Deleted Page Information Sheet,” which identifies, inter alia, the bases for
the withholding. See, e.g., Doc. Production at Shapiro-1.
D. The Instant Litigation
Mr. Shapiro filed the instant lawsuit on April 29, 2013. He alleges that FBI
violated FOIA by: (1) failing to search adequately for, and produce records responsive to, each
of his Requests; (2) invoking FOIA exemptions improperly; (3) failing to respond timely with a
determination on his appeals; 7 and (4) neglecting to respond to his requests for a fee waiver. 8
Compl. ¶¶ 45-48. Mr. Shapiro seeks an order directing FBI to produce the records that he
requested; he also seeks attorney fees and other litigation costs. Id. at 9. FBI supports its motion
to dismiss, or for summary judgment, with Declarations from Mr. Hardy. Mr. Shapiro opposes,
and has asked the Court for oral argument, Notice of Oral Arg. Request [Dkt. 14], and for leave
to file a surreply, Mot. to File Surreply [Dkt. 15]. He also has filed notice of a decision that he
says is “substantially similar” to the present case. Notice of Supp. Authority [Dkt. 16] (citing
7
This portion of Mr. Shapiro’s Complaint was mooted once he filed the instant lawsuit.
8
Although the Requests relied on FOIA and PA, this lawsuit focuses exclusively on FOIA and
neither party addresses PA in their briefs. The Court deems any PA claim waived. FDIC v.
Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997); Stephenson v. Cox, 223 F. Supp. 2d 119, 121
(D.D.C. 2002).
7
ACLU v. FBI, Civ. No. 12-03728, 2013 WL 3346845 (N.D. Cal. July 1, 2013)). FBI opposes
Mr. Shapiro’s request for leave to file a surreply. Opp’n to Surreply [Dkt. 17].
II. LEGAL STANDARDS
A. Motion to Dismiss
FBI asserts two bases for dismissing this suit. First, FBI contends that because it
conducted adequate searches and released all non-exempt records, this case is moot. Second,
FBI claims that Mr. Shapiro has failed to state a claim under FOIA.
1. Lack of Jurisdiction Due to Mootness
FBI asserts that the Court lacks jurisdiction because Mr. Shapiro’s claims are
moot, i.e., FBI conducted adequate searches 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). Because FBI did not
release all responsive documents to Mr. Shapiro, and redacted information from documents that
were released, the Court finds that his claims are not moot and that the motion to dismiss under
Rule 12(b)(1) is without merit.
2. Failure to State a Claim
FBI also contends that Mr. Shapiro failed to state a FOIA claim because it has
searched for records and released all that are not exempt from disclosure. 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) (alteration in original) (internal quotation marks and citation omitted).
8
FBI’s motion to dismiss for failure to state a claim ignores the admitted facts, as
alleged in the Complaint, that Mr. Shapiro requested documents that have been located but not
released or not released in full. He contests FBI’s claim that FOIA exemptions apply. While the
merits of his allegations are to be determined, Mr. Shapiro clearly has stated a claim. The Court
finds that the motion to dismiss for failure to state a claim is without merit.
B. Motion for Summary Judgment
FBI also contends that it is entitled to summary judgment because there is no
genuine dispute as to any material fact and it 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), aff’d, Rushford v. Smith, 656 F.2d 900 (D.C. Cir. 1981). In
a FOIA case, a court may award summary judgment solely on the basis of information provided
by the agency in affidavits or declarations when the affidavits or declarations describe “the
documents and the justifications for nondisclosure with reasonably specific detail, demonstrate
9
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 marks and citation omitted).
III. ANALYSIS
At the outset, the Court notes that FBI has not filed a traditional itemized Vaughn
index. However, the Hardy Declarations, taken together, are “sufficiently specific, detailed, and
separable to satisfy [FBI’s] burden under Vaughn because the [Declarations] provide[] ‘a
reasonable basis to evaluate [each] claim of privilege.’” Hodge v. FBI, 764 F. Supp. 2d 134, 141
(D.D.C. 2011) (quoting Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006)), aff’d,
703 F.3d 575 (D.C. Cir. 2013); see also Keys v. U.S. Dep’t of Justice, 830 F.2d 337, 349 (D.C.
Cir. 1987) (explaining that the Circuit’s “post-Vaughn opinions make clear” that a Vaughn index
is evaluated in terms of its function rather than form).
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
10
(1) improperly (2) withheld (3) agency records. U.S. Dep’t of Justice v. Tax Analysts, 492 U.S.
136, 142 (1989); United We Stand Am., Inc. v. IRS, 359 F.3d 595, 598 (D.C. Cir. 2004). FOIA
authorizes suit only against federal agencies and limits the remedy for the improper withholding
of records to 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). A district court may only order the
agency to produce erroneously withheld records. See, e.g., Kennecott Utah Copper Corp. v. U.S.
Dep’t of the Interior, 88 F.3d 1191, 1203 (D.C. Cir. 1996) (finding FOIA only calls for releasing
records to a complainant, not publication in the Federal Register). Once all requested records
have been produced, there is no longer a case or controversy and a FOIA action becomes moot.
See Armstrong v. Exec. Office of the President, 97 F.3d 575, 582 (D.C. Cir. 1996).
An agency defending 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), aff’d, Sanders v.
U.S. Dep’t of Justice, No. 10-5273 (D.C. Cir. Apr. 21, 2011). The adequacy of a search is
measured by a standard of reasonableness and depends on the individual circumstances of each
case. Truitt v. 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, an 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
11
(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 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 through a declaration by a
responsible agency official, 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 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). Agency 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 quotation marks and citation 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 is the most appropriate
person to provide a comprehensive affidavit in FOIA litigation. Id. Further, 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, a plaintiff must demonstrate the
lack of a good faith search. See Maynard v. CIA, 986 F.2d 547, 560 (1st Cir. 1993). If the
record raises substantial doubt as to the reasonableness of the search, especially in light of “well-
12
defined requests and positive indications of overlooked materials,” then summary judgment may
be inappropriate. Founding Church of Scientology of Washington, D.C. v. NSA, 610 F.2d 824,
837 (D.C. Cir. 1979). However, 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 marks and citation omitted). 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. 132, 162 (1975)); see also Blakey v. Department 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), and 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, Wash. Bureau 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 marks and citation 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).
13
B. Adequacy and Scope of FBI’s Search
The Hardy Declarations make clear that FBI conducted good faith and reasonable
searches of its records systems likely to possess records responsive to Mr. Shapiro’s requests. 9
In responding to the three Requests, FBI searched CRS and ELSUR. CRS is an electronic
repository for information compiled for law enforcement purposes as well as administrative,
applicant, criminal, personnel, and other files. Hardy Decl. ¶ 22. ELSUR is a separate system of
records used to maintain information on a subject whose electronic and/or voice communications
have been intercepted as a part of consensual or court-ordered wiretap. Id. ¶ 28. CRS is
searched via the Automated Case Support System (ACS), id. ¶ 22, which consists of the
Investigative Case Management, Electronic Case File (ECF), and Universal Index software
applications, id. ¶ 26, and is accessed through General Indices, which are searchable by subject,
id. ¶¶ 23-24. ELSUR indices also are automated, but constitute a separate system of records
from CRS and cannot be retrieved through either the General Index or CRS. Id. ¶¶ 29-30.
With respect to Request No. 1205920-000, FBI searched ELSUR and conducted a
text search of ECF for the term “Occupy Houston” as it relates to the assassination plot alleged
in Mr. Shapiro’s request. Id. ¶¶ 32-33. Mr. Hardy states that FBI does not ordinarily conduct a
text search of ECF, but did so here because it provided a more comprehensive search of CRS.
Id. ¶ 32. None of these searches turned up responsive records. Id. ¶ 33.
In its search related to Request No. 1205920-001, Mr. Hardy states that FBI
“again” reviewed the passages highlighted by Mr. Shapiro and contacted the “appropriate unit
9
Except for the records for which FBI invokes FOIA Exemption 7, the Court finds the Hardy
Declarations sufficiently detailed so that in camera review of the underlying documents is
unnecessary. See ACLU v. U.S. Dep’t of Defense, 628 F.3d 612, 627 (D.C. Cir. 2011).
14
[that] handles the reports referenced” therein. Id. ¶ 34. This search resulted in the identification
of five pages of responsive records.
As for Request No. 1206188-000, FBI searched CRS and conducted a text search
of ECF using the term “law enforcement responses and Occupy Houston.” Id. ¶ 35. Drawing on
a similar FOIA request from 2011, FBI also searched for the following terms: “Occupy
Movement/Northern California,” “Occupy Oakland,” “Occupy San Francisco,” “Occupy Cal,”
“Occupy UC Davis,” “OWS,” “Occupy Wall,” “Occupy Movement,” “Occupy Encampments,”
“Occupy Encampment,” “Occupy McPherson,” “Occupy Zuccotti Park,” “Occupy New York
City,” “Occupy DC,” “Occupy Portland,” “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.” 10 Id. ¶ 36. These searches produced 454 pages of
potentially responsive records, of which FBI determined twelve were responsive. Id.
Mr. Shapiro claims that FBI’s searches were inadequate. He accuses FBI of
“ignor[ing] all of the leads that were turned up by the documents,” failing to produce documents
that were referenced in the unredacted portions of the records he received from FBI (i.e., an
“IIR,” and an email referenced on an “iWatch Report”), insufficiently describing the search
10
The adequacy of the 2011 search that FBI references was litigated in Truthout v. Department
of Justice (Truthout I), Civ. No. 12-1660 (RMC), 2013 WL 3742496 (D.D.C. July 17, 2013), and
Truthout v. Department of Justice (Truthout II), Civ. No. 12-1660 (RMC), 2013 WL 5630250(D.D.C. Oct. 16, 2013). This Court concluded that “FBI conducted good faith, reasonable
searches of the systems of records likely to possess records responsive to [p]laintiffs’ requests,”
Truthout II, 2013 WL 5630250, at *1, and denied plaintiff’s motion for reconsideration, id. at *4.
15
conducted for Request No. 1205920-001, and using the “patently unreasonable” search term
“law enforcement responses and Occupy Houston” in connection with Request No. 1206188-
000. Opp’n at 31-32. As revealed by Mr. Hardy’s Supplemental Declaration, many of Mr.
Shapiro’s claims are factually inaccurate.
Mr. Hardy states that FBI did, in fact, conduct follow-on searches. Supp. Hardy
Decl. ¶¶ 8-12. For instance, he affirms that FBI initially searched for “law enforcement
responses and Occupy Houston” in connection with Request No. 1206188-000, but subsequently
used the broader search term: “Occupy Houston.” Id. ¶ 11. He also states that FBI released to
Mr. Shapiro the “IIR and iWatch Report that are mentioned in Shapiro-11 and 13,” Supp. Hardy
Decl. ¶ 8, and that any additional documents would have been located through FBI searches if
they had been indexed, id. ¶¶ 9-10.
Likewise, Mr. Shapiro’s claim that the Hardy Declaration insufficiently describes
the search undertaken for Request No. 1205920-001 is without merit upon review of the
Supplemental Declaration. Mr. Hardy initially stated that FBI “reviewed the highlighted
portions of [Mr. Shapiro’s] request again and contacted the appropriate unit [that] handles the
reports referenced in the FBI document attached to [Mr. Shapiro’s] request.” Hardy Decl. ¶ 34.
In his Supplemental Declaration, Mr. Hardy clarifies that RIDS “contacted the appropriate unit”
in relation to the IRR and iWatch Report, which apparently were referenced in the documents
that Mr. Shapiro attached to Request No. 1205920-001 and highlighted. Supp. Hardy Decl. ¶ 10.
Mr. Hardy adds that “[a]ny other additional documents would have been located through . . .
FBI’s reasonable search of the CRS as described” in his initial Declaration. 11 Id.11
The Court notes that Mr. Hardy’s initial Declaration does not explicitly state that FBI searched
CRS in connection with Request No. 1205920-001. However, upon closer inspection of the
record before the Court, it is clear that FBI conducted such a search. The confusion stems from
16
Thus, contrary to Mr. Shapiro’s contentions, the Hardy Declarations establish that
all of FBI’s searches were reasonably calculated to discover requested documents. SafeCard,
926 F.2d at 1200-01; Meeropol, 790 F.2d at 950-51. 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. Here, FBI exceeded this standard.
In responding to Request No. 1206188-000, FBI took the additional step of conducting a text
search of ECF for more than forty search terms from another Occupy-related FOIA case. In
short, all three of FBI’s searches were adequate.
C. Claimed Exemptions
Following a reasonable search, an agency may lawfully withhold records that are
exempt from release under FOIA. “[A]lthough 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 marks and citation omitted). This is because
the imprecise wording used in the initial Hardy Declaration. Mr. Hardy’s statement that FBI
“reviewed the highlighted portions of [Mr. Shapiro’s] request again” supposes that FBI reviewed
the highlighted portions at some point earlier in time. Hardy Decl. ¶ 34 (emphasis added).
Although Mr. Hardy does not spell it out explicitly, it is clear from the record that FBI, in fact,
conducted a search for the highlighted portions of the document attached to Request No.
1205920-001 when it ran a search in connection with Request No. 1205920-000. This is because
Request Nos. 1205920-000 and 1205920-001 overlap. Attached to both Requests were several
previously released records, including an FBI document dated October 19, 2011. The only
difference between the FBI document attached to Request No. 1205920-000 and the FBI
document attached to Request No. 1205920-001 was that Mr. Shapiro highlighted certain
paragraphs in the latter. Accordingly, when Mr. Hardy states that FBI “again” reviewed the
highlighted portions of Mr. Shapiro’s request, id., he means to say that FBI already had searched
for records responsive to the document as part of its response to Request No. 1205920-000.
Rather than dismiss Request No. 1205920-001 as redundant, FBI took the extra step of reviewing
the document “again” and contacting “the appropriate unit” that handles the IRR and iWatch
reports. Thus, it is accurate to say that FBI searched CRS in responding to Request No.
1205920-001.
17
“disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of the Air Force v. Rose,
425 U.S. 352, 361 (1976). Consequently, the exemptions are narrowly construed. Tax Analysts,
492 U.S. at 151.
1. Exemption 1
Information concerning matters of national security is exempt from disclosure
under FOIA Exemption 1 so long as the information satisfies the substantive and procedural
criteria set forth in an Executive Order. See 5 U.S.C. § 552(b)(1). The Executive Order
applicable to the instant litigation is Executive Order 13,526, which President Obama issued on
December 29, 2009. See Exec. Order. No. 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009). 12 It
permits information to be classified if the following conditions are met:
(1) an original classification authority is classifying the
information;
(2) the information is owned by, produced by or for, or is under the
control of the United States Government;
(3) the information falls within one or more of the categories of
information listed in section 1.4 of [the] [O]rder; and
(4) the original classification authority determines that the
unauthorized disclosure of the information reasonably could be
expected to result in damage to the national security which
includes defense against transnational terrorism, and the
original classification authority is able to identify or describe
the damage.
Id. § 1.1(a). In reviewing classification determinations under Exemption 1, the D.C. Circuit has
repeatedly stressed that “substantial weight” must be accorded agency affidavits concerning the
classified status of the records at issue. See, e.g., Krikorian v. Dep’t of State, 984 F.2d 461, 464
(D.C. Cir. 1993); Military Audit Project, 656 F.2d at 738. As the D.C. Circuit has cautioned,
12
Executive Order 13,526 revoked Executive Order 13,292 and Executive Order 12,958. See id.§ 6.2(g).
18
“[j]udges . . . lack the expertise necessary to second-guess . . . agency opinions in the typical
national security FOIA case.” Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980).
Mr. Shapiro does not dispute that the Hardy Declaration establishes that Mr.
Hardy is a proper classifying authority, see Hardy Decl. ¶ 2, or that the information redacted is
“under the control of the United States Government,” id. ¶ 47. Nor does Mr. Shapiro quibble
with Mr. Hardy’s sworn averment that the withheld information falls within subsection (c) of
section 1.4 because it concerns “‘intelligence activities (including covert action), intelligence
sources or methods, or cryptology.’” Id. ¶ 48 (quoting Exec. Order No. 13,526, § 1.4(c)).
Instead, Mr. Shapiro challenges the adequacy of the Hardy Declaration’s description of withheld
information, both in terms of the context and nature of the information, as well as the
consequences that reasonably will flow from disclosure.
Relying primarily on King v. United States Department of Justice, 830 F.2d 210(D.C. Cir. 1987), Mr. Shapiro identifies several alleged deficiencies in the Hardy Declaration.
Mr. Shapiro contends that the Hardy Declaration does not provide sufficient context for the
redactions. He also suggests that FBI’s limited reliance on Exemption 1 means, a fortiori, that
“additional context can be provided without harming national security.” Opp’n at 5. Further,
Mr. Shapiro argues that the Hardy Declaration’s description of the withholding of intelligence
activities, methods, and sources already has been found to be inadequate under King, see 830
F.2d at 222 & n.93 (deeming insufficient a short, generic paragraph addressing the meaning of
intelligence methods or activities), so that Mr. Hardy’s description of the potential harm to
national security resulting from disclosure is so categorical that it neither “correlate[s] particular
reasons with particular redactions,” Opp’n at 7 (citing Branch v. FBI, 658 F. Supp. 204, 208
19
(D.D.C. 1987)), nor establishes a “‘logical nexus between disclosure . . . and damage to the
national security,’” Opp’n at 8 (alteration in original) (quoting King, 830 F.2d at 223). Finally,
Mr. Shapiro accuses FBI of cutting-and-pasting language from affidavits prepared for other
FOIA lawsuits, instead of preparing a case-specific declaration. See Opp’n at 9-16 (comparing
the initial Declaration to affidavits produced in four other FOIA lawsuits). Mr. Shapiro
concludes that the size and location of the redactions constitute contrary record evidence that the
withheld information might concern “detailed intelligence activities.” Hardy Decl. ¶ 53.
Mr. Shapiro’s argument pulls King from its moorings and generally misreads D.C.
Circuit precedent. Although King reproved affidavits premised on “[c]ategorical description[s]
of redacted material coupled with categorical indication[s] of anticipated consequences of
disclosure,” id. at 224, it neither indicated that a limited invocation of Exemption 1 necessarily
undermines withholding information nor suggested that all précis of withheld information are
insufficient. Rather, the D.C. Circuit directed that an agency need only provide “as much
information as possible without thwarting the exemption’s purpose.” Id. (emphasis added).
More recently, the D.C. Circuit has underscored the deferential nature of judicial review in FOIA
cases involving matters of national security. Once an agency supports a national security
exemption with statements that:
contain reasonable specificity of detail as to demonstrate that the
withheld information logically falls within the claimed exemption
and evidence in the record does not suggest otherwise, . . . the
court should not conduct a more detailed inquiry to test the
agency’s judgment and expertise or to evaluate whether the court
agrees with the agency’s opinions.
Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009) (emphasis added). To be sure,
conclusory affidavits with “vague or sweeping” statements are insufficient. Id. at 864. But,
20
where the agency’s affidavit satisfies the Larson standard, the Circuit has “consistently deferred
to executive affidavits predicting harm to the national security[] and . . . found it unwise to
undertake searching judicial review.” Id. at 865 (internal quotation marks and citation omitted).
Contrary to Mr. Shapiro’s contentions, the Hardy Declaration is sufficiently
detailed for these purposes. It defines what constitutes an intelligence activity or method, Hardy
Decl. ¶ 49, and describes with reasonable detail the information withheld so as to demonstrate
that Exemption 1 applies without revealing the exact information at issue, id. ¶ 50. Mr. Hardy
also reports that he determined that the withheld information was properly classified “Secret”
because its unauthorized disclosure reasonably could be expected to cause serious damage to
national security, 13 id. ¶ 47, and describes several concrete and logical harms to national security
that reasonably may result if the information were disclosed, id. ¶ 51. The Hardy Declaration is
sufficiently tailored to Mr. Shapiro’s document requests, even if parts of it have been relied upon
in other cases. See Coldiron v. U.S. Dep’t of Justice, 310 F. Supp. 2d 44, 45 (D.D.C. 2004)
(analyzing whether an FBI declaration’s discussion of Exemption 1 was mere boilerplate, noting
that “[t]he mere fact of repetition is not, in itself, important”). Similarly, there is no basis in
precedent or logic for the proposition that the location or size of a redaction contradicts a sworn
statement on the need to keep the information classified.
In reality, Mr. Shapiro’s issue with the Hardy Declaration is that it does not reveal
the information he wants. See Opp’n at 8 (faulting the Hardy Declaration because its
“description of the agency’s invocation of Exemption 1 contains no specific reference to the
subjects of Mr. Shapiro’s requests . . .”). But that is the point of Exemption 1. See Supp. Hardy
13
“National security,” as defined in § 6.1(cc) of Executive Order 13,526, means “the national
defense or foreign relations of the United States.”
21
Decl. ¶ 15 (“To further explain the material that is being protected by Exemption (b)(1) would
reveal the very nature of the information . . . FBI is trying to protect.”). Disclosure of matters of
national security is uniquely within the purview of the Executive Branch. That FBI did not
disclose what might appear to be minor details about plots against Occupy Houston leadership or
law enforcement’s response to Occupy Houston protests is not consequential. What may seem
like minor details to a person outside law enforcement, in reality, “may reveal more information
than their apparent insignificance suggests because, much like a piece of jigsaw puzzle, [each
detail] may aid in piecing together other bits of information even when the individual piece is not
of obvious importance in itself. . . .” Larson, 565 F.3d at 864 (alterations in original); Hardy
Decl. ¶ 54 (stating that “each piece of information was evaluated with careful consideration
given to the impact that disclosure of this information will have on other sensitive information
contained elsewhere in the United States intelligence community’s files”). The two declarations
from Mr. Hardy give the Court no reason to second-guess FBI’s decision to withhold certain
information under Exemption 1, even if such second-guessing were appropriate. Neither Hardy
Declaration is contradicted by the record or undermined by any hint of agency bad faith.
Accordingly, they are due substantial weight. Mr. Shapiro’s challenge to FBI’s reliance on
Exemption 1 is without merit.
2. Exemption 3
Exemption 3 protects records that are “specifically exempted from disclosure by
statute . . . if that statute . . . requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or . . . establishes particular criteria for withholding
or refers to particular types of matters to be withheld.” 5. U.S.C. § 552(b)(3)(A). If the relevant
22
statute was enacted after October 28, 2009, the enactment date of the OPEN FOIA Act of 2009,
then the statute must specifically cite Exemption 3. Id. § 552(b)(3)(B).
Exemption 3, therefore, is unlike other FOIA exemptions. “[I]ts applicability
depends less on the detailed factual contents of specific documents; the sole issue for decision is
the existence of a relevant statute and the inclusion of withheld material within that statute’s
coverage.” Goland, 607 F.2d at 350; Ass’n of Retired R.R. Workers v. U.S. R.R. Ret. Bd., 830
F.2d 331, 336 (D.C. Cir. 1987). FBI “need only show that the statute claimed is one of [the]
exemption[s] as contemplated by Exemption 3 and that the withheld material falls within the
statute.” Larson, 565 F.3d at 868 (citing Fitzgibbon v. CIA, 911 F.2d 755, 761-62 (D.C. Cir.
1990)).
The statute relevant to this discussion is the National Security Act of 1947, 50
U.S.C. §§ 3001 et seq., as amended by the Intelligence Reform and Terrorism Prevention Act of
2004, Pub. L. 108-458, 118 Stat. 3638 (2004). The National Security Act provides that the
“Director of National Intelligence 14 shall protect intelligence sources and methods from
unauthorized disclosure.” 50 U.S.C. § 403-1(i)(1). 15 It also directs DNI to “establish and
implement guidelines for the intelligence community” for, inter alia, “[c]lassification of
information under applicable law, Executive orders, or other Presidential directives” and
“[a]ccess to and dissemination of intelligence . . . .” Id. § 403-1(i)(2). 16 FBI is a member of the
14
The Director of National Intelligence (DNI) has assumed certain duties previously delegated to
the Director of Central Intelligence. See Wolf, 473 F.3d at 377 n.6.
15
This section has been transferred to 50 U.S.C. § 3024(i)(1).
16
This section has been transferred to 50 U.S.C. § 3024(i)(2)(A)-(B).
23
intelligence community. Id. § 401a(4)(H). 17 Accordingly, FBI correctly construes the National
Security Act as a federal statute that leaves it with “no discretion [in] . . . withholding from the
public information about intelligence sources and methods.” Hardy Decl. ¶ 58 (citing CIA v.
Sims, 471 U.S. 159 (1985)). It is well established that the National Security Act is “‘precisely
the type of statute[] comprehended by [E]xemption 3.’” Schoenman v. FBI, Civ. No. 04-2202,
2009 WL 763065, at *24 (D.D.C. Mar. 19, 2009) (quoting Goland, 607 F.2d at 349) (other
citations omitted); see Sims, 471 U.S. at 167 (recognizing that the provision of the National
Security Act that directs DNI to protect intelligence sources and methods from unauthorized
disclosure “‘clearly refers to particular types of matters,’” 50 U.S.C. § 552(b)(3), and thus,
“qualifies as a withholding statute under Exemption 3”); Valfells v. CIA, 717 F. Supp. 2d 110,
116 (D.D.C. 2010) (noting that the National Security Act has “been recognized as [an]
exempting statute[] for the purposes of Exemption 3”), aff’d, Moore v. CIA, 666 F.3d 1330 (D.C.
Cir. 2011).
FBI also has demonstrated that the withheld information falls within the National
Security Act. FBI invoked Exemption 3 in conjunction with Exemption 1 which, as discussed
supra, concerns intelligence activities and methods. The Hardy Declarations have provided
sufficient information to show that Exemption 3 applies for the same reason that Exemption 1
applies, as the withheld information “relate[s] to intelligence sources and methods utilized in the
investigations at issue.” Supp. Hardy Decl. ¶ 16. 18
17
This section has been transferred to 50 U.S.C. § 3003(4)(H).
18
This averment in the Supplemental Declaration, along with footnote 10 in the original
Declaration, see Hardy Decl. ¶ 60 n.10, moots Mr. Shapiro’s complaint that Mr. Hardy describes
“intelligence activities,” but not sources or methods, Opp’n at 18. Assuming arguendo that
“intelligence activities” do not encompass “intelligence sources or methods,” it is clear from both
24
Mr. Shapiro counters that Sims, 471 U.S. 159, and ACLU, 628 F.3d 612, require
FBI to connect the sources and methods it wishes to protect to “foreign intelligence,” Opp’n at
18, which he contends it has not done. Yet, neither Sims nor ACLU stands for this proposition.
“Sims itself actually involved domestic educational institutions and researchers.” Fitzgibbon,
911 F.2d at 764-65. It “unequivocally held that the Director of Central Intelligence may protect
all intelligence sources, regardless of their provenance.” Id. at 762 (emphasis added). ACLU
does not hold differently. FBI’s invocation of Exemption 3 was proper.
3. Exemption 6
FBI withheld information under Exemption 6, which 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. Wash. Post Co., 456 U.S. 595, 602 (1982)), aff’d, 398 F. App’x
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.” Wash. Post Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d 252, 260 (D.C.
Cir. 1982) (quoting Wash. Post, 456 U.S. at 602).
the Declarations and the markings on the released documents that the information redacted under
Exemption 3 is the same as the information redacted under Exemption 1.
25
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.” Rose, 425 U.S.
at 372 (internal quotation marks and citation omitted); see also Lepelletier v. FDIC, 164 F.3d 37,
46 (D.C. Cir. 1999). Under Exemption 6, the privacy interest at stake belongs to the individual,
not to the agency. See Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 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 & Records Admin. v. Favish, 541 U.S. 157, 172 (2004) (interpreting analogous
Exemption 7(C)).
Here, FBI withheld certain records otherwise responsive to Mr. Shapiro’s
Requests on the ground that Exemption 6 applies. Hardy Decl. ¶¶ 63-72. Specifically, FBI
withheld the names and identifying information of the following individuals: (1) federal and state
law enforcement officers and personnel, id. ¶¶ 65-67; (2) third parties who provided information
to FBI, id. ¶¶ 68-69; (3) third parties mentioned in the responsive records, id. ¶ 70; and (4) a non-
FBI federal employee, id. ¶¶ 71-72. Mr. Shapiro only challenges FBI’s decision to withhold the
names and identifying information of third parties who provided information to FBI, and only
does so to the extent that FBI relies on Exemption 7(C). Accordingly, Mr. Shapiro has waived
any argument as to the applicability of Exemption 6. See CSX Transp., Inc. v. Commercial
Union Ins., Co., 82 F.3d 478, 482-83 (D.C. Cir. 1996); see also Hopkins v. Women’s Div., Bd. of
Global Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002).
26
4. Exemption 7 Generally
FOIA Exemption 7 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 cause certain enumerated harms. 5 U.S.C. § 552(b)(7). In
order to withhold materials properly under Exemption 7, an agency must establish both that the
records at issue were compiled for law enforcement purposes, and that the material satisfies the
requirements of one of the six subparts of Exemption 7. See Pratt v. Webster, 673 F.2d 408, 413
(D.C. Cir. 1982). Thus, the D.C. Circuit has established a two-part, objective test whereby the
government can show that its records are law enforcement records:
Pratt requires, first, that the agency identify a particular individual
or a particular incident as the object of its investigation and specify
the connection between that individual or incident and a possible
security risk or violation of federal law. The agency must then
demonstrate that this relationship is based on information sufficient
to support at least a colorable claim of the connection’s rationality.
This inquiry, while necessarily deferential, is not vacuous. In
order to pass the FOIA Exemption 7 threshold, . . . an agency must
establish that its investigatory activities are realistically based on a
legitimate concern that federal laws have been or may be violated
or that national security may be breached. Either of these concerns
must have some plausible basis and have a rational connection to
the object of the agency’s investigation.
King, 830 F.2d at 229-30 (alterations in original) (internal quotation marks and citations
omitted). The upshot of this two-part test is that, in assessing whether records were compiled for
law enforcement purposes, the “focus is on how and under what circumstances the requested
files were compiled, and whether the files sought relate to anything that can fairly be
characterized as an enforcement proceeding.” Jefferson v. Dep’t of Justice, Office of Prof’l
Responsibility, 284 F.3d 172, 176-77 (D.C. Cir. 2002) (internal quotation marks and citations
27
omitted). For instance, records compiled “in connection with investigations that focus directly
on specific alleged illegal acts which could result in civil or criminal sanctions” are records
compiled for law enforcement purposes, as distinguished from records compiled in connection
with the government’s “customary surveillance” of its employees’ performances. Id. at 177
(citing Rural Housing Alliance v. Dep’t of Agric., 498 F.2d 73, 81 (D.C. Cir. 1974)). It should
be noted, however, that the investigation need not “lead to a criminal prosecution or other
enforcement proceeding in order to satisfy the ‘law enforcement purpose’ criterion.” Pratt, 673
F.2d at 421.
Mr. Shapiro contends that the Hardy Declaration does not satisfy either prong of
Pratt. He argues that FBI has not established that it actually conducted an investigation into
criminal acts, specified the particular individual or incident that was the object of its
investigation, adequately described the documents it is withholding under Exemption 7, or
sufficiently connected the withheld documents to a specific statute that permits FBI to collect
information and investigate crimes. Mr. Shapiro further alleges that FBI has failed to state a
rational basis for its investigation or connection to the withheld documents, which he describes
as overly-generalized and not particular.
On the latter point, the Court agrees. Mr. Hardy’s averments are too generalized
for purposes of Exemption 7. He states that any responsive records located by FBI “concern
documents compiled as a result of assistance FBI rendered to various state and local law
enforcement agencies which were investigating potential criminal activity by protestors [sic]
involved with the ‘Occupy’ movement in Houston.” Supp. Hardy Decl. ¶ 18. Further, Mr.
Hardy states that FBI maintained the records pursuant to FBI’s “general investigative authority
28
per 28 U.S.C. §§ 533 and 534,” and its “lead role in investigating terrorism and in the collection
of terrorism threat information,” Supp. Hardy Decl. ¶ 17 (internal quotation marks and citation
omitted). He adds that FBI, acting in concert with state and local law enforcement agencies,
compiled these records while assessing the protests for potential terrorist threats, including
domestic terrorism in violation of 18 U.S.C. § 2331, and other criminal activity, such as
advocating the overthrow of the government in violation of 18 U.S.C. § 2385. Id. ¶¶ 18, 20. At
no point does Mr. Hardy supply specific facts as to the basis for FBI’s belief that the Occupy
protestors might have been engaged in terroristic or other criminal activity. Cf. Quinon v. FBI,
86 F.3d 1222, 1229 (D.C. Cir. 1996) (rejecting FBI’s invocation of Exemption 7 where the
affidavits proffered in support of FBI’s motion for summary judgment “simply allude to ‘certain
events,’ which [FBI] fail[s] to describe or characterize”). Neither the word “terrorism” nor the
phrase “advocating the overthrow of the government” are talismanic, especially where FBI
purports to be investigating individuals who ostensibly are engaged in protected First
Amendment activity.
Accordingly, the Hardy Declarations do not provide enough specificity such that
the Court can say that FBI has established a “colorable claim of rationality,” Pratt, 673 F.2d at
420, between the object of its investigation and its asserted law enforcement duties, id. at 421.
FBI will be directed to explain its basis for withholding information pursuant to Exemption 7.
To the extent that FBI believes it cannot be more specific without revealing the very information
it wishes to protect, it may request an in camera review of the documents. See Simon v. Dep’t of
Justice, 980 F.2d 782, 784 (D.C. Cir. 1992) (“In [the] unusual circumstance, where the agency
cannot describe the document fully enough to show that it is exempt from disclosure without in
29
the course of doing so disclosing the very information that warrants exemption, the solution is
for the court to review the document in camera.”). 19
D. 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-Pac. 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. U.S. Bureau of Prisons, 927 F.2d 1239,
1242 n.4 (D.C. Cir. 1991) (internal quotation marks and citation omitted). Mr. Shapiro argues
that FBI failed to release reasonably segregable material.
Certain redacted materials were provided to Mr. Shapiro and other materials were
withheld in full. See Hardy Decl. ¶ 38 (FBI sought to achieve “maximum disclosure” by
releasing all material in the public domain and all reasonably segregable material); id. ¶¶ 39-41
(explaining FBI’s description of documents by Bates number and by the applicable FOIA
exemption). Mr. Hardy explains that material that was withheld was exempt from disclosure or
was so intertwined with protected material that segregation was not possible. Hardy Decl. ¶ 43;
Supp. Hardy Decl. ¶ 13. Mr. Shapiro claims that FBI has “analyze[d] the segregability of the
redacted documents . . . in conclusory fashion.” Opp’n at 32. The Court disagrees. It has
reviewed FBI’s declarations and finds that these submissions adequately specify “which portions
19
Because the Court finds that FBI has not satisfied the threshold standard for Exemption 7, it
will not address at this time FBI’s reliance on Exemptions 7(A), 7(C), 7(D), or 7(E).
30
of the document[s] are disclosable and which are allegedly exempt.” See Vaughn, 484 F.2d at
827. 20
IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion to Dismiss or for Summary
Judgment, Dkt. 9, will be granted in part and denied in part. The Court will grant Mr. Shapiro’s
Motion to File a Surreply, Dkt. 15, and deny as moot his Motion for Oral Argument, Dkt. 14. A
memorializing Order accompanies this Opinion.
/s/
ROSEMARY M. COLLYER
Date: March 12, 2014 United States District Judge
20
On August 30, 2013, one month after briefing in the instant litigation was complete, Mr.
Shapiro filed a Motion for Leave to File Surreply. The Court will grant the Motion. It has
reviewed the Surreply and finds no need for a further response from FBI.
31