Farahi v. Federal Bureau of Investigation ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
FOAD FARAHI, )
)
Plaintiff, )
)
v. )
) Civil Action No. 15-2122 (RBW)
FEDERAL BUREAU OF )
INVESTIGATION, )
)
Defendant. )
)
MEMORANDUM OPINION
The plaintiff, Foad Farahi, brings this civil action against the defendant, the Federal
Bureau of Investigation (“FBI”), pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, seeking the release of records related to a memorandum written by the defendant that was
introduced during the plaintiff’s immigration removal proceedings. See Complaint for Injunctive
Relief ¶¶ 1, 5, 8–13, ECF No. 1. Currently pending before the Court is the defendant’s motion
for summary judgment. See Defendant’s Motion for [ ] Summary Judgment (“Def.’s Mot.”),
ECF No. 37. Upon careful consideration of the parties’ submissions, 1 the Court concludes for
the following reasons that it must deny the defendant’s motion for summary judgment without
prejudice.
1
In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the defendant’s Answer (“Answer”), ECF No. 9; (2) the Memorandum of Points and Authorities in
Support of Defendant’s Motion for Summary Judgment (“Def.’s Mem.”), ECF No. 37-1; (3) the Defendant’s
Statement of Material Facts (“Def.’s Facts”), ECF No. 37-2; (4) the Declaration of David M. Hardy (“Hardy Decl.”),
ECF No. 37-3; (4) the Plaintiff’s Memorandum of Points and Authorities in Opposition to Defendant’s Motion for
Summary Judgment (“Pl.’s Opp’n”), ECF No. 39; (5) the Reply to Plaintiff’s Opposition to Defendant’s Motion for
Summary Judgment (“Def.’s Reply”), ECF No. 41; (6) the Plaintiff’s Reply in Opposition (“Pl.’s Surreply”), ECF
No. 43; and (7) the sealed Declaration of David M. Hardy and attached exhibits, which are classified and were thus
submitted ex parte to the Court for its in camera review, see Defendant’s Motion for Leave to Submit Declaration
Under Seal and Ex Parte, In Camera, in Support [of] Defendant’s Motion for Summary Judgment at 1, ECF No. 36.
I. BACKGROUND
A. Factual Background
This case concerns ten FOIA requests submitted by the plaintiff to the defendant on
June 28, 2014, see Def.’s Facts ¶ 2, 2 seeking records related to his “immigration removal
proceedings[,]” id. at 1. Specifically, the plaintiff seeks:
The name, title, current deployment jurisdiction, and current contact information
of the author or authors of a 2007 [ ] [m]emo[random (“the 2007 Memo”) from
the defendant] purportedly about him and the agent/polygrapher who examined
[him] on November 8, 2004, and November 1, 2004.
Any and all [ ] FD-302 interview reports[ from the defendant], and FD-209
reports regarding [him], any person discussed in any document that has been or
will be presented to the immigration court, or any person that will be discussed in
the proposed testimony by Supervisory Special Agent Andrew Lenzen (“Special
Agent Lenzen”), and/or any other special agents during the course of his removal
proceedings.
The full and complete names and contact information, including, current address
and phone numbers of all the confidential informants referred to by the
[defendant] on its 2007 Memo, and identified as C-1, C-2, C-3, C-4, C-5, and the
Trinidad and Tobago National interviewed by the [defendant] in Port of Spain
Trinidad, on November 13, 2003.
Any and all evidence and/or information gathered in connection with him as a
result of the [defendant’s] electronic surveillance, including but not limited to
audio, video, computer, wireless, polygraph examination and/or data network
surveillance.
Any and all evidence and/or information gathered in connection with [him] and
his alleged associations with the filing organizations in the United States:
KindHearts for Charitable Humanitarian Development, Kind Hearts International,
the Holy Land Foundation for Relief and Development, and the Global Relief
Foundation.
2
Local Civil Rule 7(h) requires that “[e]ach motion for summary judgment shall be accompanied by a statement of
material facts as to which the moving party contends there is no genuine issue[,]” and “[a]n opposition to such a
motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to
which it is contended there exists a genuine issue necessary to be litigated[.]” LCvR 7(h). Here, the defendant filed
a statement of material facts along with its motion, see Def.’s Facts, however, the plaintiff failed to file “a separate
concise statement of genuine issues” along with his opposition to the defendant’s motion. Because the plaintiff has
“fail[ed] to comply with Local [Civil] Rule 7(h), the Court may assume that the facts identified by the moving
party”—here, the defendant—“are admitted.” Hunter v. Rice, 480 F. Supp. 2d 125, 130 (D.D.C. 2007).
2
Any and all records from other agencies in the possession of [the defendant]
whether included in [his] file, such as the U.S. Department of Treasury; the U.S.
Citizenship and Immigration Services, the U.S. Immigration and Customs
Enforcement, the Internal Revenue Service (“IRS”), and the Florida Department
of Highway Safety and Motor Vehicles.
All documents maintained by [the defendant] or any other government agency,
including the Joint Terrorism Task Force (“JTTF”), that names, mentions,
discusses, or addresses in any manner whatsoever [the p]laintiff or persons
allegedly associated with him.
All documents, pursuant to the Jenks Act, in the [defendant’s] possession
regarding the p]laintiff or any person alleged to have a relationship with him
whom the government regards as a terrorist.
Any and all exculpatory evidence regarding [the p]laintiff or persons allegedly
associated with him.
A list of any and all documents released from the [defendant] to the OCC in
Miami, [regarding the p]laintiff or persons allegedly associated with him.
Id. ¶ 3 (internal citations, quotation marks, and alterations omitted).
“By letter dated August 6, 2014, [the d]efendant notified [the p]laintiff that it had located
approximately 10,750 pages of records and 80 CDs consisting of audio and video potentially
responsive to the subject of [the p]laintiff’s request.” Id. ¶ 5 (internal quotation marks and
alterations omitted). After the plaintiff filed his Complaint in this case on December 8, 2015, see
Compl. at 1, the parties disputed the rate at which the defendant should process the responsive
records, see Defendant’s Proposed Schedule at 1, ECF No. 19; Plaintiff’s Proposed Schedule
at 1, ECF No. 20, and, on March 23, 2017, the Court directed the defendant to “process 500
pages of records per month and produce any non-exempt records to the plaintiff on a rolling
basis.” Minute (“Min.”) Order (Mar. 23, 2017). “By letter dated April 6, 2017, [the d]efendant
notified [the p]laintiff that it ‘had examined 504 responsive pages and determined [that] the
information was entirely exempt from disclosure pursuant to FOIA Exemption 7(A)[,]’” as well
3
as “‘Exemptions 1, 3, 5, 6, 7(C), 7(D), and 7(E).’” Def.’s Facts ¶ 7 (quoting Hardy Decl. ¶ 15).
By letter dated May 2, 2017, the defendant informed the plaintiff that it had “‘reviewed 63 pages
of records and released 61 pages of records in full or part, with certain information withheld
pursuant to [ ] Exemptions 6, 7(C), 7(D), and 7(E).’” Id. ¶ 8 (quoting Hardy Decl. ¶ 14).
Between May 2017 and June 2019, during which the defendant made its last round of
productions, see id. ¶ 9 n.2 (“[The d]efendant’s last records examination consisted of 381
responsive records.” (citing Hardy Decl. ¶ 40)), the defendant “examined a minimum of 500
pages each month,” which “were withheld in their entirety pursuant to [ ] Exemption 7(A)[,] as
well as . . . Exemptions 1, 3, 6, 7(C), 7(D), [and] 7(E)[,]” id. ¶ 9 (quoting Hardy Decl. ¶¶ 19–
40). 3
B. Procedural History
On October 31, 2019, the defendant filed its motion for summary judgment, see Def.’s
Mot. at 1, as well as a motion for leave to file a classified declaration in support of its motion
under seal ex parte for the Court’s in camera review, see Defendant’s Motion for Leave to
Submit Declaration Under Seal and Ex Parte, In Camera in Support [of] Defendant’s Motion for
Summary Judgment at 1. On January 17, 2020, the plaintiff filed his opposition to the
defendant’s motion, see Pl.’s Opp’n at 1; on March 17, 2020, the defendant filed its reply in
support of its motion, see Def.’s Reply at 1; and, on April 30, 2020, the plaintiff filed his
surreply, see Pl.’s Surreply at 1.
3
The defendant also referred records to other government agencies for their evaluation, and they asserted the
following exemptions in addition to the defendant’s assertion of Exemption 7(A): (1) the IRS withheld records
pursuant to Exemptions 3, 6, and 7(A), see id. ¶ 11; (2) the Naval Criminal Investigative Service withheld records
pursuant to Exemptions 6 and 7(C), see id. ¶ 12; (3) the Army’s Intelligence and Security Command withheld
records pursuant to Exemptions 1, 3, 6, and 7(E), see id. ¶ 13; (4) the Social Security Administration withheld
records pursuant to Exemptions 6 and 7(C), see id. ¶ 14; (5) the Defense Intelligence Agency withheld records
pursuant to Exemption 1, see id. ¶ 15; (6) the Transportation Security Administration withheld records pursuant to
Exemption 3, see id.; and (7) the Treasury Department withheld records pursuant to Exemptions 3 and 7(E), see id.
4
On October 21, 2020, the Court issued an Order, granting the defendant’s motion for
leave to file the classified declaration under seal for the Court’s in camera review. See Order at
1 (Oct. 21, 2020), ECF No. 45. Because (1) “‘the validity of the [defendant’s] assertion of
[E]xemption [7(A)] c[ould ]not be evaluated without information beyond that contained in the
public affidavits and in the records themselves[,]’” id. at 2 (quoting Arieff v. U.S. Dep’t of the
Navy, 712 F.2d 1462, 1471 (D.C. Cir. 1983)) (all but last two alterations in original); and (2)
“‘public disclosure of that information would compromise the secrecy asserted[,]’” id. (quoting
Arieff, 712 F.2d at 1471), the Court concluded that “it [wa]s appropriate to file the [classified]
declaration ex parte and under seal[,]” id.II. STANDARD OF REVIEW
“FOIA cases typically are resolved on a motion for summary judgment.” Ortiz v. U.S.
Dep’t of Justice, 67 F. Supp. 3d 109, 116 (D.D.C. 2014). The “FOIA requires federal agencies
to disclose, upon request, broad classes of agency records unless the records are covered by the
statute’s exemptions.” Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 833
(D.C. Cir. 2001) (citing 5 U.S.C. § 552(a)(3)(A), (b)); see also Wash. Post Co. v. U.S. Dep’t of
Justice, 863 F.2d 96, 101 (D.C. Cir. 1988) (“[The] FOIA is to be interpreted with a presumption
favoring disclosure and exemptions are to be construed narrowly.”). In a FOIA action, the
defendant agency has “[the] burden of demonstrating that the withheld documents are exempt
from disclosure[,]” Boyd v. U.S. Dep’t of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007), and this
burden “cannot be met by mere conclusory statements[,]” Wash. Post Co., 863 F.2d at 101. “The
agency may meet this burden by filing affidavits describing the material withheld and the manner
in which it falls within the exemption claimed[,]” King v. U.S. Dep’t of Justice, 830 F.2d 210,
5
217 (D.C. Cir. 1987), and by “show[ing] how release of the particular material would have the
adverse consequence that the [FOIA] seeks to guard against[,]” Wash. Post Co., 863 F.2d at 101.
Moreover, courts will grant summary judgment to the government in a FOIA case only if
the agency can prove “that it has fully discharged its obligations under the FOIA, after the
underlying facts and the inferences to be drawn from them are construed in the light most
favorable to the FOIA requester.” Friends of Blackwater v. U.S. Dep’t of Interior, 391 F. Supp.
2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep’t of Treasury, 10 F. Supp. 2d 3, 11
(D.D.C. 1998)). Thus, in a lawsuit brought to compel the production of documents under the
FOIA, “an agency is entitled to summary judgment if no material facts are in dispute and if it
demonstrates ‘that each document that falls within the class requested either has been
produced . . . or is wholly[, or partially,] exempt [from disclosure].’” Students Against
Genocide, 257 F.3d at 833 (omission in original) (quoting Goland v. Cent. Intelligence Agency,
607 F.2d 339, 352 (D.C. Cir. 1978)). However, “[t]he burden upon the requester is merely ‘to
establish the absence of material factual issues before a summary disposition of the case could
permissibly occur.’” Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898,
904–05 (D.C. Cir. 1999) (quoting Nat’l Ass’n of Gov’t Emps. v. Campbell, 593 F.2d 1023, 1027
(D.C. Cir. 1978)).
III. ANALYSIS
The defendant argues that, “[b]ecause [the] records [sought by the plaintiff] are law
enforcement records and [their] release could interfere with an ongoing investigation, [it]
correctly withheld all[ of the records], except [those that are] publicly available [ ], . . . under [ ]
6
Exemption 7(A).” 4 Def.’s Mem. at 1–2. In response, the plaintiff argues that the defendant has
not provided adequate information to justify the withholding of the records pursuant to
Exemption 7(A). See Pl.’s Opp’n at 11–16. The Court will first address whether the defendant
has appropriately withheld information pursuant to Exemption 7(A), before proceeding to
consider whether the defendant has released all reasonably segregable information.
A. Whether the Defendant Has Appropriately Withheld Information Under
Exemption 7(A)
“Exemption 7 [of the FOIA] protects from disclosure ‘records or information compiled
for law enforcement purposes,’ but only to the extent that disclosure of such records would cause
[one of Exemption 7’s] enumerated harm[s.]” Lewis v. U.S. Dep’t of Just., 867 F. Supp. 2d 1,
18 (D.D.C. 2011) (Walton, J.) (quoting 5 U.S.C. § 552(b)(7)). To justify the withholding of
information pursuant to Exemption 7(A), an agency must show that “disclosure (1) could
reasonably be expected to interfere with (2) enforcement proceedings that are (3) pending or
reasonably anticipated.” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice,
746 F.3d 1082, 1096 (D.C. Cir. 2014) (quoting Mapother v. U.S. Dep’t of Justice, 3 F.3d 1533,
1540 (D.C. Cir. 1993)). In crafting this exemption, “Congress recognized that law enforcement
agencies ha[ve] legitimate needs to keep certain records confidential, lest the agencies be
hindered in their investigations or placed at a disadvantage when it came time to present their
cases.” Alyeska Pipeline Serv. Co. v. Envtl. Prot. Agency, 856 F.2d 309, 313 (D.C. Cir. 1988)
(quoting Nat’l Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978));
see also Maydak v. U.S. Dep’t of Justice, 218 F.3d 760, 762 (D.C. Cir. 2000) (“The principal
4
The defendant “also invoked other [ ] FOIA exemptions[,] such as [ ] Exemptions 1, 3, 5, [6] and 7, in addition to
[ ] Exemption 7(A)[,]” Def.’s Mem. at 2, however, because the Court concludes that the defendant has appropriately
withheld the records pursuant to Exemption 7(A), the Court need not consider these alternative bases for the
withholdings, see id. at 15–39, or the plaintiff’s counterarguments, see Pl.’s Opp’n at 17–18. See Larson v. Dep’t of
State, 565 F.3d 857, 862–63 (D.C. Cir. 2009) (“[C]ourts may uphold agency action under one exemption without
considering the applicability of the other.”).
7
purpose of Exemption 7(A) is to prevent disclosures [that] might prematurely reveal the
government’s cases in court, its evidence and strategies, or the nature, scope, direction, and focus
of its investigations, and thereby enable suspects to establish defenses or fraudulent alibis or to
destroy or alter evidence.”). Despite these objectives, this exemption is not intended to be a
“blanket exemption” for any files or records that are relevant to an investigation—their
disclosure must be reasonably expected to interfere in a “palpable, particular way” with an
investigation. North v. Walsh, 881 F.2d 1088, 1100 (D.C. Cir. 1989).
1. Whether the Records Were “Compiled for Law Enforcement Purposes”
First, the Court considers whether the withheld records were “compiled for law
enforcement purposes” under Exemption 7. “To show that the disputed documents were
compiled for law enforcement purposes, [an agency] need only establish a rational nexus
between [an] investigation and one of the agency’s law enforcement duties and a connection
between an individual or incident and a possible security risk or violation of federal law.”
Blackwell v. Fed. Bureau of Investigation,646 F.3d 37, 40 (D.C. Cir. 2011). “With respect to the
threshold requirement of showing that the disputed records were compiled for law enforcement
purposes, courts ‘are more deferential to the agency’s claimed purpose for the particular records’
when ‘the agency’s principal function is law enforcement,’ and will ‘scrutinize with some
skepticism the particular purpose claimed’ when ‘the agency has mixed law enforcement and
administrative functions.’” Codrea v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 239
F. Supp. 3d 128, 132 (D.D.C. 2017).
Here, the defendant has adequately demonstrated that the withheld records were
“compiled for law enforcement purposes[.]” 5 U.S.C. § 552(b)(7)(A). As the Hardy Declaration
notes, “the [defendant] is the primary investigative agency of the federal government” and has
the “authority and responsibility to investigate all violations of federal law not exclusively
8
assigned to another agency, to conduct investigations and activities to protect the United States
and its people from terrorism and threats to national security, and to further the foreign
intelligence objectives of the United States.” Hardy Decl. ¶ 60. Because the defendant is a law
enforcement agency, the Court is thus “more deferential to [its] claimed purpose[s] for the
particular records[.]” Codrea, 239 F. Supp. 3d at 132. Here, the defendant states that it
“generated the responsive records in furtherance of investigations [into] violations of national
security and international terrorism[,]” including “pending law enforcement proceedings and the
[plaintiff’s] association with individuals directly involved in such violations.” Hardy Decl. ¶ 60.
Therefore, the Court concludes that the defendant has satisfied the threshold showing that the
records sought by the plaintiff are law enforcement records for purposes of Exemption 7(A).
2. Whether Disclosure of the Requested Documents Could Reasonably Be Expected to
Interfere with Enforcement Proceedings that Are Pending or Reasonably
Anticipated
The Court now turns to whether the defendant has adequately shown that “disclosure
(1) could reasonably be expected to interfere with (2) enforcement proceedings that are
(3) pending or reasonably anticipated[,]” as required by Exemption 7(A). Citizens for
Responsibility & Ethics in Wash., 746 F.3d at 1096 (quoting Mapother, 3 F.3d at 1540). An
agency withholding information pursuant to Exemption 7(A) is entitled to summary judgment
when “the agency affidavits describe the documents withheld and the justifications for
nondisclosure in enough detail and with sufficient specificity to demonstrate that [the] material
withheld is logically within the domain of the exemption claimed.” Juarez v. Dep’t of Just., 518
F.3d 54, 58 (D.C. Cir. 2008). The agency need not make a “specific factual showing with
respect to each withheld document that disclosure would actually interfere with a particular
enforcement proceeding[,]” but rather the Court may make a general determination that, “with
respect to particular kinds of enforcement proceedings, disclosure of particular kinds of
9
investigatory records while a case is pending would generally interfere with enforcement
proceedings.” Agrama v. Internal Revenue Serv., 282 F. Supp. 3d 264, 273–74 (D.D.C. 2017)
(internal quotation marks omitted). Because, here, the defendant “seeks to withhold records
categorically under Exemption 7(A), its task becomes ‘three-fold.’” Reporters Comm. for
Freedom of the Press v. Fed. Bureau of Investigation, 548 F. Supp. 3d 185, 207 (D.D.C. 2021)
(quoting Citizens for Responsibility & Ethics in Wash., 746 F.3d at 1098. “First, it must define
its categories functionally. Second, it must conduct a document-by-document review in order to
assign documents to the proper category. Finally, it must explain to the [C]ourt how the release
of each category would interfere with enforcement proceedings.” Citizens for Responsibility &
Ethics in Wash., 746 F.3d at 1098. The Court will address each task in turn.
a. Whether the Defendant Has Defined Categories Functionally
Beginning with the defendant’s first task, the Court concludes that the defendant has
“define[d] its categories functionally.” Id. A “functional[] category[,]” id., should “provide
enough information to allow the Court ‘to trace a rational link between the nature of the
document and the alleged likely interference[.]’” Reporters Comm., 548 F. Supp. 3d at 207
(quoting Crooker v. Bureau of Alcohol, Tobacco & Firearms, 789 F.2d 64, 67 (D.C. Cir. 1986)).
Here, according to the Hardy Declaration, “[t]he FBI [ ] grouped the records in the responsive
main file and cross[-]reference[d] records into [two main] functional categories[:]” (1)
“Evidentiary/Investigative Materials” and (2) “Administrative Materials[.]” Hardy Decl. ¶ 70
(underlines omitted); see also id. ¶ 65 (listing nineteen types of records contained within these
functional categories). The Hardy Declaration describes both categories, providing a full
10
explanation of the types of records within each main “functional category[.]” 5 See id. ¶¶
70(A)–(B). Accordingly, the Court concludes that the defendant has adequately “divid[ed] the
withheld documents into functional categories[,]” Reporters Comm., 548 F. Supp. 3d at 207,
which permits the Court to “trace a rational link between the nature of the document and the
alleged likely interference[,]” Crooker, 789 F.2d at 67.
b. Whether the Defendant Conducted a Document-by-Document Review
Second, the Court concludes that the defendant “conduct[ed the requisite]
document-by-document review in order to assign documents to the proper category.” Citizens
for Responsibility & Ethics in Wash., 746 F.3d at 1098. The Hardy Declaration explicitly states
that the defendant “reviewed each responsive document in this case to determine whether
Exemption 7(A) and any other exemptions appl[ied.]” Hardy Decl. ¶ 64. Accordingly, the Court
concludes that the defendant has met its burden to review the withheld documents individually
“in order to assign documents to the proper category[.]” Citizens for Responsibility & Ethics in
Wash., 746 F.3d at 1098.
5
According to the Hardy Declaration, the category of “Evidentiary/Investigative Materials . . . includes copies of
records or evidence, and derivative communications discussing or incorporating evidence.” Hardy Decl. ¶ 70(A)
(underline omitted). Evidentiary materials include “confidential source and witness statements[,]” id. ¶ 70(A)(i);
“records documenting and detailing the exchange of information among law enforcement partners[,]” id. ¶ 70(A)(ii);
and “[i]nformation concerning physical and documentary evidence[,]” including “records obtained from confidential
sources[ or] through Federal Grand Jury subpoenas, search warrants, and/or correspondence between third
parties[,]” id. ¶ 70(A)(iii). “[D]erivative communications” “describe[], verbatim or in summary, the contents of the
original record, how it was obtained, and how it relates to the investigation” or “report this information to other [ ]
[f]ield [o]ffices or [ ] law enforcement agencies, either to advise them of the progress of the investigation, or to elicit
their assistance in handling investigative leads.” Id.
In contrast, according to the Hardy Declaration, the category of “Administrative Materials . . . include[s] items such
as case captions, serial numbers, identities of [ ] field offices involved, dates of investigation, and detailed
instructions designed to ensure that investigative procedures are conducted within the appropriate . . . guidelines[ of
the defendant and the Department of Justice].” Id. ¶ 70(B). The defendant divides this category into three
subcategories: (1) “Reporting Communications[,]” which “permit the [defendant] and/or other agencies to monitor
the progress of the investigation and to facilitate its conduct[,]” id. ¶ 70(B)(i); (2) “Miscellaneous Administrative
Documents[,]” e.g., an “envelope used to store records obtained from a confidential source” that reflects
“handwritten notations . . . identify[ing] dates, places, and the persons who provided the records[,]” id. ¶ 70(B)(ii);
and (3) “Administrative Instructions[,]” which “disclose[] specific investigative procedures and strategies employed
in this investigation[,]” id. ¶ 70(B)(iii).
11
c. Whether the Defendant Has Adequately Explained How the Release of Each
Document Category Would Interfere with Enforcement Proceedings
Third and finally, the Court is also convinced that the defendant has adequately
“explain[ed] . . . how the release of each category would interfere with enforcement
proceedings.” Id. Regarding this task, although the Court should “give deference to an agency’s
predictive judgment of the harm that will result from disclosure of information, it is not sufficient
for the agency to simply assert that disclosure will interfere with enforcement proceedings[.]”
Id. Instead, the agency “must [ ] demonstrate how disclosure will do so.” Id. (internal quotation
marks omitted) (emphasis in original). Specifically, to meet its burden, the agency must
demonstrate that “disclosure of the[] documents would, in some particular, discernible way,
disrupt, impede, or otherwise harm the enforcement proceeding.” North, 881 F.2d at 1097. The
Court will therefore address in turn: (1) whether, for each functional category, the defendant has
demonstrated that “release . . . would interfere with enforcement proceedings[,]” Citizens for
Responsibility & Ethics in Wash., 746 F.3d at 1098; (2) whether the enforcement proceedings at
issue are pending or reasonably anticipated, see id. at 1097; and (3) the plaintiff’s arguments
regarding these questions.
i. Release of Evidentiary and Investigative Materials
First, the Court is convinced that the defendant has adequately demonstrated that the
release of the categorized “[e]videntiary[ and ]investigative materials[,]” Hardy Decl. ¶ 70(A)
(capitalization omitted), would “interfere with enforcement proceedings[,]” Citizens for
Responsibility & Ethics in Wash., 746 F.3d at 1098. According to the Hardy Declaration, the
release of “confidential source and witness statements[,]” which “contain information obtained
from confidential informants, records custodians, and other third party individuals who have
knowledge of the criminal activities at issue[,]” could subject “the witnesses and/or confidential
12
sources who have chosen to cooperate with law enforcement . . . to retaliation, intimidation, or
physical or mental harm.” Hardy Decl. ¶ 70(A)(i) (capitalization omitted). In turn, these
potential consequences “could have a chilling effect on the [defendant’s] future investigative
efforts and prosecutions in this and other cases” because “potential witnesses and/or confidential
sources might fear exposure and reprisals from the subjects of th[ese] investigations[.]” Id.
Similarly, according to the Hardy Declaration, the “[r]elease of records documenting and
detailing the exchange of information among law enforcement partners” could “disclose
investigative information developed by various agencies” that “would identify the investigative
interest in particular individuals” and “subject witnesses and confidential sources to potential
harassment, intimidation[,] and physical or mental harm.” Id. ¶ 70(A)(ii). And, Hardy
represented that the release of “[i]nformation concerning physical and documentary evidence[,]”
including Federal Grand Jury subpoenas, search warrants, and/or correspondence between third
parties . . . could be detrimental to [the] success of [ ] pending and prospective enforcement
proceedings by permitting subjects to formulate a strategy as to how the evidence could be
contradicted in [c]ourt.” Id. ¶ 70(A)(iii).
Furthermore, the Hardy Declaration states that releasing “communications [that] permit
the [defendant] and/or other agencies to monitor the progress of [an] investigation and to
facilitate its conduct[ ]” would provide “detailed information about the investigative
activities[,] . . . potential witnesses[,] and confidential sources[;]” as well as “background
information about third party individuals, the origin of pertinent information that ties [these
individuals] to the investigation, their connection with the subjects, and their relationship [to] the
pending investigation.” Id. ¶ 70(B)(i). According to the Hardy Declaration, this information, if
released, would “reveal or confirm” (1) the cooperation of other local, state, or federal agencies
13
in the investigation[;]” (2) “the investigative steps taken to obtain witness and confidential
source interviews[;]” (3) the “techniques and investigative methods used to compile/solicit
information from various sources[;]” (4) “the perceived weaknesses in the investigation[;]” and
(5) “the nature and scope of the pending investigations.” Id.
These representations, in conjunction with the classified declaration and the exhibits
submitted with it, adequately demonstrate that disclosure of the evidentiary and investigative
materials could, in “particular[ and] discernible way[s], disrupt, impede, [and/]or otherwise harm
the enforcement proceeding[s,]” North, 881 F.2d at 1097.
ii. Release of Administrative Materials
Similarly, the Court concludes that the defendant has adequately demonstrated that the
release of the categorized “administrative materials[,]” Hardy Decl. ¶ 70(B) (capitalization
omitted), would “interfere with enforcement proceedings[,]” Citizens for Responsibility & Ethics
in Wash., 746 F.3d at 1098. According to the Hardy Declaration, because the subjects of the
defendant’s “ongoing investigations . . . know[] the details surrounding the potential criminal
activities, the identities of potential witnesses, and the direct and circumstantial evidence of the
potential criminal activities[,]” they “could [ ] use the released information to their advantage to
alter[ or ]destroy[ evidence;] create false evidence[;] intimidate potential witnesses[; and] adjust
patterns of behavior to avoid detection and/or mislead investigations.” Hardy Decl. ¶ 68.
Although the defendant’s declarant provides this rationale generally with respect to the release of
any withheld information to the plaintiff, see id., he also represents that “[i]n many instances,
administrative information is contained in correspondence or documents that also fall into other
categories[,]” id. ¶ 70(B), and “[t]herefore, release of details with respect to this category of
information would also reveal the investigative interests of the FBI and could enable suspects to
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discern a ‘road map’ of the investigations[,]” id. In addition, the defendant states that “the
release of [the] information contained in these documents” would potentially result in (1) “the
identification of individuals, sources, and potential witnesses . . . and possible harm, harassment,
or intimidation of these individuals;” (2) “the use of released information to counteract evidence
developed by investigators, alter or destroy potential evidence or create false evidence[;]” (3)
“the use of information released to uncover the government’s trial strategy;” (4) “the use of
released information by any subject of the investigation to assess the likelihood that he or she
may be prosecuted and/or convicted in connection with the investigation[;]” and (5) “the use of
released information by any subject to adjust behaviors to avoid detection of ongoing criminal
activities or mislead investigators.” Id. ¶¶ 68(a)–(e).
Moreover, according to the Hardy Declaration, releasing “communications [that] permit
the [defendant] and/or other agencies to monitor the progress of [an] investigation and to
facilitate its conduct[ ]” would provide “detailed information about the investigative
activities[,] . . . potential witnesses[,] and confidential sources[;]” as well as “background
information about third party individuals, the origin of pertinent information that ties [these
individuals] to the investigation, their connection with the subjects, and their relationship [to] the
pending investigation.” Id. ¶ 70(B)(i). The declarant further states that this information, if
released, would “reveal or confirm” (1) the cooperation of other local, state, or federal agencies
in the investigation[;]” (2) “the investigative steps taken to obtain witness and confidential
source interviews[;]” (3) the “techniques and investigative methods used to compile/solicit
information from various sources[;]” (4) “the perceived weaknesses in the investigation[;]” and
(5) “the nature and scope of the pending investigations.” Id. Additionally, he represents that
“disclosure of these materials could harm the investigation by providing details which, when
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viewed in conjunction with knowledge possessed by the subjects, could provide information
useful in identifying witnesses, investigative strategies, legal information, and items of
evidence.” Id. ¶ 70(B)(ii); see, e.g., id. (discussing as an example an “envelope used to store
records obtained from a confidential source” that includes “handwritten notations” that “may
identify dates, places, and the persons who provided the records”). Finally, according to the
Hardy Declaration, releasing “administrative instructions . . . disclos[ing] specific investigative
procedures and strategies” would “permit the subject of an investigation to anticipate and
possibly alter or negate incriminating evidence [that] could be used in future prosecutions of
him[, ]her[,] or other subjects.” Id. ¶ 70(B)(iii). Based on these revelations, the Court concludes
that the Hardy Declaration amply demonstrates “how the release of [the materials in this]
category would interfere with enforcement proceedings.” Citizens for Responsibility & Ethics in
Wash., 746 F.3d at 1098.
iii. Enforcement Proceedings that Are Pending or Reasonably
Anticipated
Next, the Court considers whether the enforcement proceedings that would be impacted
by the release of these documents are “pending or reasonably anticipated.” Shapiro v. Dep’t of
Just., No. 12-cv-313 (BAH), 2020 WL 3615511, at *16 (D.D.C. 2020) (quoting Citizens for
Responsibility & Ethics in Wash., 746 F.3d at 1096). To prevail on this question, the defendant
must demonstrate that “the material withheld relates to a concrete prospective law enforcement
proceeding.” Juarez, 518 F.3d at 58 (internal quotation marks omitted). “The proceeding must
remain pending at the time of [the Court’s] decision, not only at the time of the initial FOIA
request[,]” and thus “reliance on Exemption 7(A) may become outdated when the proceeding at
issue comes to a close.” Id.16
Here, based on the Court’s review of the Hardy Declaration, as well as the classified and
ex parte declaration and accompanying exhibits, the Court concludes that the defendant has
seemingly “met its burden to show that the records relate to “enforcement proceedings that are . .
. pending or reasonably anticipated.” Shapiro, 2020 WL 3615511, at *16 (quoting Citizens for
Responsibility & Ethics in Wash., 746 F.3d at 1096). The Hardy Declaration states that
“[m]aterial responsive to [the p]laintiff’s request is located in [the] files of ongoing
investigations” and “[r]elease of any information, other than public source information from
these files, could reasonably be expected to interfere with these pending criminal law
enforcement proceedings, as well as potential enforcement proceedings such as spin-off
investigations and/or prosecutions that may result from the investigations.” Hardy Decl. ¶ 66.
Furthermore, according to the Hardy Declaration, “[t]he ongoing investigations are related to
[the plaintiff] and others, and release of the requested information would allow such individuals
to critically analyze documents concerning these international terrorism investigations.” Id.
These representations, combined with the classified and ex parte declaration and accompanying
exhibits, cause the Court to conclude that the defendant has seemingly demonstrated that the
relevant “enforcement proceedings” are “pending or reasonably anticipated.” Shapiro, 2020 WL
3615511, at *16.
iv. The Plaintiff’s Arguments
Despite the record before the Court, the plaintiff argues that disclosure of the requested
documents would impact neither (1) “criminal enforcement proceedings[,]” Pl.’s Opp’n at 11,
nor (2) “immigration enforcement proceedings[,]” id. at 15; and (3) “the [C]ourt should disregard
[the defendant’s] claims [regarding the potential impact on national security] in conjunction
with” its reliance on Exemption 7(A) because “[n]ational security concerns are [ ] addressed”
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under Exemptions 1 and 3[,]” id. at 16. The Court is not persuaded by any of the plaintiff’s
arguments.
First, the plaintiff argues that several investigations by the defendant into his associates
could not be impacted by the release of records in this case because any action resulting from
those investigations would be barred by statutes of limitations. See id. at 15. However, despite
the plaintiff’s representations about the individuals and organizations that may be associated with
the defendant’s investigations, based on the Court’s review of the Hardy Declaration and the
classified ex parte declaration and exhibits submitted to the Court, the Court concludes that the
defendant has seemingly established that the relevant “enforcement proceedings” remain
“pending or reasonably anticipated[.]” Shapiro, 2020 WL 3615511, at *16.
Second, the plaintiff argues that “generic withholding” of the records sought in this case
due to their potential impact on his immigration removal proceedings is “inappropriate” because
“the submission of evidence in the [p]laintiff’s [removal] proceedings is now almost
concluded[.]” Pl.’s Opp’n at 16. Again, based on the Court’s review of the Hardy Declaration
and the classified ex parte declaration and exhibits submitted to the Court, the Court concludes
that the defendant has seemingly established that the relevant “enforcement proceedings” remain
“pending or reasonably anticipated[.]” Shapiro, 2020 WL 3615511, at *16.
Third, the plaintiff argues that “the [C]ourt should disregard [the defendant’s] claims
[regarding the potential impact on national security] in conjunction with” its reliance on
Exemption 7(A) because “[n]ational security concerns are [ ] addressed” under Exemptions 1
and 3[,]” Pl.’s Mem. at 16. The plaintiff is correct that Exemptions 1 and 3 provide for the
withholding of records that implicate national security concerns. See 5 U.S.C. § 552(b)(1)
(“This section does not apply to matters that are[] [ ] (A) specifically authorized under criteria
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established by an Executive order to be kept secret in the interest of national defense or foreign
policy and (B) are in fact properly classified pursuant to such Executive order[.]”); see also id.§ 552(b)(3) (“This section does not apply to matters that are[] . . . specifically exempted from
disclosure by statute[.]”); Larson v. Dep’t of State, 565 F.3d 857, 868 (D.C. Cir. 2009) (noting
that “section 6 of the National Security Act . . . qualifies as an Exemption 3 statute”). However,
for the following reasons, the Court concludes that it cannot disregard the defendant’s
representations regarding the potential impact on national security.
As the defendant correctly notes, see Def.’s Reply at 5–6, there is a “principle of
deference to the executive in the FOIA context[—including in regards to Exemption 7(A)—
]when national security concerns are implicated.” Ctr. for Nat. Sec. Studies v. U.S. Dep’t of
Just., 331 F.3d 918, 927 (D.C. Cir. 2003). As the District of Columbia Circuit has noted, “in the
FOIA context, [courts] have consistently deferred to executive affidavits predicting harm to the
national security . . . so long as the government’s declarations raise legitimate concerns that
disclosure would impair national security[,]” id. at 927–28; see also id. (concluding that there
was not “any reason to limit deference to the executive in its area of expertise to certain FOIA
exemptions so long as the government’s declarations raise legitimate concerns that disclosure
would impair national security”). Because the Court has concluded that the defendant’s
“declarations raise legitimate concerns that disclosure would impair national security[,]” Ctr. for
Nat. Sec. Studies, 331 F.3d at 928, the Court defers to the declarations submitted by the
defendant, which demonstrate that the “disclosure of the documents would, in some particular,
discernible way, disrupt, impede, or otherwise harm the enforcement proceeding[s,]” North, 881
F.2d at 1097.
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Accordingly, for the above reasons, and based on the Court’s review of the Hardy
Declaration and the classified declaration and accompanying exhibits submitted ex parte to the
Court, the Court concludes that the defendant has seemingly withheld the requested information
properly pursuant to Exemption 7(A). The Court’s ruling is inconclusive because a significant
time has passed since the filing of the Hardy Declaration and the classified ex parte declaration
on October 31, 2019, due to the size of the Court’s docket. See Def.’s Mot. at 1; Defendant’s
Motion for Leave to Submit Declaration Under Seal and Ex Parte, In Camera in Support [of]
Defendant’s Motion for Summary Judgment at 1. And, because “[t]he [relevant] proceeding
[under Exemption 7(A)] must remain pending at the time of [the Court’s] decision, not only at
the time of the initial FOIA request[,]” Juarez, 518 F.3d at 58 (internal quotation marks omitted),
the Court will deny the defendant’s motion without prejudice and require the defendant to
reassess whether the relevant “enforcement proceedings” remain “pending or reasonably
anticipated[,]” Shapiro, 2020 WL 3615511, at *16, as described in the declarations submitted to
the Court. Once the defendant has completed this review, it may file a renewed motion for
summary judgment based on either Exemption 7(A), if the relevant proceedings remain pending
or reasonably anticipated, or on the other FOIA exemptions asserted in the defendant’s motion.
B. Segregability
The Court now turns to whether the defendant has provided all reasonably segregable
records to the plaintiff. Under the FOIA, “[a]ny reasonably segregable portion of a record shall
be provided to any person requesting such record after deletion of the portions which are exempt
under [ ] subsection [552(b)].” 5 U.S.C. § 552(b). “[I]t has long been the rule in this Circuit that
non-exempt portions of a document must be disclosed unless they are inextricably intertwined
with exempt portions.” Wilderness Soc’y v. U.S. Dep’t of Interior, 344 F. Supp. 2d 1, 18
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(D.D.C. 2004) (Walton, J.) (emphasis omitted). Therefore, because “[t]he focus of the FOIA is
information, not documents, [ ] an agency cannot justify withholding an entire document simply
by showing that it contains some exempt material.” Mead Data Ctr., Inc. v. U.S. Dep’t of Air
Force, 566 F.2d 242, 260 (D.C. Cir. 1977). “A district court’s determination that agency records
are exempt from disclosure under the FOIA is subject to remand if the court does not also make
specific findings on the question of segregability[,]” Judicial Watch, Inc. v. U.S. Dep’t of Def.,
245 F. Supp. 3d 19, 36 (D.D.C. 2017) (Walton, J.), “even if the requester did not raise the issue
of segregability before the court[,]” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C.
Cir. 2007).
In order to assess segregability, a “district court must be provided with a ‘relatively
detailed description’ of the withheld material.” Judicial Watch, Inc., 245 F. Supp. 3d at 36
(citing Goldberg v. U.S. Dep’t of State, 818 F.2d 71, 78 (D.C. Cir. 1987)). To comply with this
requirement, “[a]gencies must review the withheld documents and determine whether, absent the
exempted material, the resulting document would still be comprehensible, or whether ‘the result
would be an essentially meaningless set of words and phrases.’” Id. at 36–37 (citing Mead Data
Ctr., 566 F.2d at 261). “[T]o show that an entire document cannot be produced[,]” an agency
must conduct “[a] ‘document-by-document’ review and [provide] a declaration that each piece of
information that is withheld is not reasonably segregable[.]” Id. (citing Juarez v. U.S. Dep’t of
Just., 518 at 61). Although “[a]gencies are entitled to a presumption that they complied with the
obligation to disclose reasonably segregable material[,]” Ecological Rts. Found. v. U.S. Envtl.
Prot. Agency,541 F. Supp. 3d 34, 66 (D.D.C. 2021) (quoting Sussman, 494 F.3d at 1117), an
“agency must provide a detailed justification for [the exempt material’s] non-segregability[,]” id.(quoting Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002)) (internal
21
quotation marks omitted) (alterations in original). Generally, “[a]ffidavits attesting to the
agency’s ‘line-by-line review of each document withheld in full’ and the agency’s determination
‘that no documents contained releasable information which could be reasonably segregated from
the nonreleasable portions,’ in conjunction with a Vaughn index describing the withheld record,
suffice.” Id. (quoting Johnson, 310 F.3d at 776).
Here, for reasons that cannot be stated on the public record, the Court concludes that it
requires additional information in order to issue a ruling on the merits regarding whether the
defendant satisfied its segregability obligations under the FOIA. Accordingly, the Court will
also deny the defendant’s motion without prejudice as to the segregability issue, and will issue a
separate, sealed, and ex parte order setting forth its ruling in detail.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that it must deny without prejudice the
defendant’s motion for summary judgment.
SO ORDERED this 30th day of November, 2022. 6
REGGIE B. WALTON
United States District Judge
6
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
22