Magassa v. Federal Bureau of Investigation ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LASSANA MAGASSA,
Plaintiff, Civil Action No. 1:19-cv-01952 (JMC)
v.
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
MEMORANDUM OPINION
Plaintiff Lassana Magassa submitted a request to the Federal Bureau of Investigation (FBI)
asking for all information that the agency had about him. 1 The FBI searched its records and
released documents to him, some of which had redactions. Magassa thought the FBI’s search was
inadequate and that the disclosure withheld too much information. He sued the FBI, seeking to
compel the agency to perform a more rigorous search and release more documents.
The Court has reviewed declarations documenting the search that was performed and
explaining the rationale for withholding certain information, including one submitted in camera
because of its sensitive nature. ECF 28. The Court concludes that the FBI performed an adequate
search and sufficiently explained why it did not disclose all information. Therefore, the Court
grants the FBI’s Motion for Summary Judgment and, accordingly, denies Magassa’s Cross-Motion
for Summary Judgment.
1
Unless otherwise indicated, the formatting of quoted materials has been modified throughout this opinion, for
example, by omitting internal quotation marks and citations, and by incorporating emphases, changes to capitalization,
and other bracketed alterations therein. All pincites to documents filed on the docket are to the automatically generated
ECF Page ID number that appears at the top of each page.
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I. BACKGROUND
The Complaint alleges the following. In 2007, after he was graduated from college,
Lassana Magassa applied for a job with the FBI. ECF 1 ¶ 2. Four years later, in 2011, Magassa
met with FBI agents in New York City, under the assumption that he was being interviewed for a
job. Id. ¶ 3. The FBI agents questioned Magassa about an acquaintance of his (named “Adis” in
the Complaint), then never contacted him again. Id. ¶¶ 4–5.
In 2015, Magassa applied to work for Delta Airlines as a service/ramp agent. Id. ¶¶ 6–7.
U.S. Customs and Border Protection (CBP) interviewed Magassa as part of his background check
for the job. Id. ¶ 7. In his interviews, Magassa mentioned that he was interested in working for the
FBI someday, and the CBP interviewer offered to pass his resume along to colleagues in the FBI.
Id. ¶¶ 7–8. Magassa eventually received his clearance and began working for Delta as a Cargo
Customer Service Agent in June 2015. Id. ¶ 10.
In October 2015, CBP contacted Magassa for another interview. Id. ¶ 11. Magassa again
mentioned that he would like to work in law enforcement and, this time, the CBP agent connected
Magassa with an FBI special agent. Id. ¶¶ 11–12. Magassa met with the FBI agent for what he
thought was an interview. Id. ¶¶ 13–14. But when they met for coffee, the FBI agent questioned
Magassa about his Muslim faith and asked Magassa to be an informant for the FBI. Id. ¶ 14.
Magassa declined. Id. ¶ 15. The FBI agent reached out to Magassa again in September 2016, but
the two did not meet. Id. ¶ 16.
Around October 2016, Magassa alleges that his airport badge and security privileges were
revoked by the Transportation Security Administration (TSA). Id. ¶ 17. Magassa alleges that this
revocation made it impossible for him to do his job, resulting in his constructive discharge from
Delta. Id. Around the same time, Magassa also began to experience difficulties while traveling. Id.
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He alleges that these challenges were due to his religion and/or race, and his refusal to serve as an
FBI informant. Id. ¶ 18.
Magassa submitted a Freedom of Information Act (FOIA) and Privacy Act request to the
FBI seeking “all files, correspondence, or other records concerning [Magassa].” ECF 22-3 at 36.
To assist in the search, he provided his full name, date of birth, place of birth, and social security
number. Id. He asked the FBI to spend up to two hours searching through “automated indices,”
“older general (manual) indices,” and “all Field Offices.” Id. About a year later, the FBI provided
nineteen redacted documents as a response. Id. ¶ 9. The FBI withheld certain parts of the
documents, citing exemptions in the Privacy Act and FOIA. ECF 22-1 ¶ 9.
Magassa then sued the FBI in this Court, alleging that the FBI unlawfully withheld and
redacted responsive records in violation of FOIA. ECF 1 ¶¶ 31–52. Specifically, Magassa alleges
that the FBI failed to conduct an adequate search for responsive records, id. ¶¶ 53–56,
insufficiently explained its rationale for invoking FOIA exemptions, id. ¶ 41, failed to segregate
disclosable information from non-disclosable information, id. ¶ 45, and provided an inadequate
Glomar response, id. ¶ 41.
The FBI performed a second search of its records and released twenty-seven documents.
ECF 22-1 ¶ 15. But it still withheld certain information pursuant to Privacy Act Exemptions 5
U.S.C. § 552a(j)(2) (certain records maintained by law enforcement agencies), (k)(2)
(investigatory material compiled for law enforcement purposes), (k)(5) (investigatory material
compiled to determine an individual’s eligibility for federal employment), and (k)(6) (material
used to evaluate candidates for federal service). The FBI also withheld information under FOIA
Exemptions 5 U.S.C. § (b)(3) (records exempted from disclosure by statute), 552(b)(6) (personnel
records), (b)(7)(C) (records compiled for law enforcement purposes that could constitute an
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unwarranted invasion of privacy), and (b)(7)(E) (records compiled for law enforcement purposes
that would disclose investigation techniques and procedures). Id.
The FBI moved for summary judgment on Magassa’s claims. ECF 22. The FBI argues that
it properly applied FOIA exemptions to withhold information from disclosure: Exemption 3 was
“invoked to redact information that is permitted to be withheld under the National Security Act of
1947;” Exemptions 6 and 7(C) were applied to redact personal identifying information and protect
against “clearly unwarranted invasion of privacy;” and Exemption 7(E) was used to “excise[]
information relating to law enforcement techniques and procedure.” ECF 22-2 at 7. Magassa
responded to the Motion for Summary Judgment, ECF 23, and the FBI replied, ECF 25.
Magassa also moved for summary judgment. ECF 24. He continues to argue that the FBI
conducted an inadequate search in response to his FOIA request, improperly withheld a portion
responsive records that were generated by that search, and provided insufficient explanations for
the exemptions it invoked to withhold those records. ECF 24-1 at 6, 15. The FBI responded, ECF
26, and Magassa replied, ECF 27.
II. LEGAL STANDARD
Summary judgment is granted when the moving party “shows that there is no genuine
dispute as to any material fact” such that “the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A genuine issue of material fact is one that would change the outcome of the
litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the Parties present
conflicting evidence on a material issue, the Court must construe the evidence in the light most
favorable to the non-moving party. Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir.
2006). In FOIA cases, “[a]gency affidavits are accorded a presumption of good faith, which cannot
be rebutted by purely speculative claims about the existence and discoverability of other
documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).
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“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). In a FOIA case, a
court may award summary judgment based on the information provided in affidavits or
declarations when those documents are “relatively detailed and non-conclusory,” SafeCard Servs.
Inc., 926 F.2d at 1200, and describe “the documents and the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information withheld logically falls within the
claimed exemption, and are not controverted by either contrary evidence in the record nor by
evidence of agency bad faith,” Mil. Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
The agency bears the burden of showing that it complied with FOIA’s requirements. Valencia-
Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). “Ultimately, an agency’s
justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Jud.
Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013).
III. ANALYSIS
Magassa challenges the (a) adequacy of the FBI’s search; (b) the validity of the FBI’s
reliance upon certain FOIA exceptions to withhold information; (c) the reasonableness of the FBI’s
efforts to segregate disclosable information from non-disclosable information; and (d) the
appropriateness of the FBI’s Glomar response. The Court rejects these challenges and finds that
the FBI satisfied its obligations under FOIA and the Privacy Act.
A. Adequacy of the Search
Magassa alleges that the FBI failed to conduct an adequate search of its records. ECF 1 ¶¶
53–56. A search is adequate if it is “reasonably calculated to uncover all relevant documents.”
Valencia-Lucena, 180 F.3d at 325. Agencies must make a “good faith effort” to identify relevant
records by “using methods which can be reasonably expected to produce the information
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requested.” Id. at 326. This may involve looking in more than one place if multiple sources “are
likely to turn up the information requested.” Id.When the adequacy of an agency’s search is challenged, the agency must provide “[a]
reasonably detailed affidavit, setting forth the search terms and the type of search performed, and
averring that all files likely to contain responsive materials . . . were searched.” Oglesby v. U.S.
Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Such affidavits are “accorded a presumption of
good faith.” SafeCard Servs., 926 F.2d at 1200. Here, the FBI submitted a declaration from
Michael G. Seidel, the Section Chief of the Record/Information Dissemination Section at the FBI.
ECF 22-3 ¶ 1. Seidel explained that the FBI used the information in Magassa’s FOIA request letter
to design the search. Id. ¶ 27. The FBI searched for “Lassana Magassa” (and a three-way phonetic
breakdown of that term) in the main index of its Central Records System, which includes records
from FBI Headquarters and its field offices. Id. ¶¶ 15, 27. The search produced nineteen pages of
records. Id. ¶ 9. The FBI then searched for “Lassana Magassa” in its secondary index after Magassa
initiated this lawsuit. Id. ¶¶ 17, 27. That search yielded twenty-seven results. Id. ¶ 14. The FBI
produced these records to Magassa after making redactions. Id.
Magassa maintains that the FBI’s procedures were inadequate. While plaintiffs can provide
“countervailing evidence” rebutting an agency affidavit, Iturralde v. Comptroller of Currency, 315
F.3d 311, 314 (D.C. Cir. 2003), Magassa has not offered any evidence refuting the assertions set
forth in Seidel’s affidavit. Instead, Magassa relies on three arguments attacking the adequacy of
the FBI’s search.
1. Search Terms
First, Magassa contends that the agency’s declaration does not adequately demonstrate that
it used all search terms likely to locate responsive records. ECF 23 at 10–11. In his FOIA request,
Magassa provided his full name, date of birth, place of birth, and social security number to help
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the FBI search for records concerning him. Id.; see also ECF 22-3 at 36 (Exhibit A). The FBI
searched for his full name, “Lassana Magassa,” which included a three-way phonetic breakdown
of the name and used the information provided in Magassa’s letter to facilitate the identification
of responsive records. ECF 22-3 at ¶ 27. Magassa argues that searching for only his name—instead
of conducting searches using other information, like his birth date or social security number—was
inadequate in light of the additional information he provided. ECF 23 at 10–11. But FOIA
petitioners generally “cannot dictate the search terms” of their request. Bigwood v. Dep’t of
Defense, 132 F. Supp. 3d 124, 140–41 (D.D.C. 2015). The parameters of a search are adequate so
long as they “are reasonably calculated to lead to responsive documents.” Id. at 140.
Here, it is not clear how Magassa expected the FBI to alter its search terms. Searching the
FBI’s immense records systems for Magassa’s place of birth, for example, would potentially yield
innumerable false positives, and it is unreasonable to expect the agency to wade through those
records in the hope that additional responsive records might be identified. Also, any additional
records yielded from searches of Magassa’s place of birth, birthdate, or social security number
would have to somehow discuss Magassa without using his name for them to be responsive yet
undetected by the FBI’s initial search for “Lassana Magassa.”
In sum, the FBI’s search for Magassa’s full name was adequate because it was reasonably
calculated to produce records that were responsive to Magassa’s request for all “records
concerning [him].” ECF 22-3 at 36.
2. Search Locations
Magassa argues that the FBI did not search all locations that would be likely to contain
responsive records. ECF 23 at 10. He does not suggest what other locations the FBI should have
explored, though his initial FOIA request asked the FBI to search the automated indices, the older
general (manual) indices, and all Field Offices. ECF 22-3 at 36.
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In his declaration, Seidel provided a high-level overview of the IT infrastructure housing
the FBI’s records. He noted all FBI records created after July 1, 2012, are maintained in a case
management system called Sentinel, though some older records might exist in prior databases,
such as Automated Case Support (ACS). Id. ¶ 21; see also id. ¶¶ 19, 21 (noting that ACS still plays
a significant role in records management, though it may not contain all records from the legacy
Central Records System that preceded it). By searching Sentinel and ACS, id. ¶ 27, the FBI
searched through all FBI records created after July 1, 2012, and 105 million records created before
then, id. ¶¶ 19, 21. This is an adequate search in light of the broad request that Magassa submitted,
and particularly given the dates of Magassa’s contact with the FBI. The FBI looked in places that
could be “reasonably expected to produce the information requested,” Oglesby, 920 F.2d at 68,
and nothing in the FBI’s initial search indicated that it should dig deeper, see Campbell v. DOJ,
164 F.3d 20, 27–29 (D.C. Cir. 1998) (finding an FBI search to be inadequate because “tickler”
records produced in the initial search indicated that the FBI should have gone further). While it is
possible that stray records about Magassa exist in some unsearched locations, that possibility will
always remain when judging the adequacy of a search against a “reasonableness” standard. Here,
the FBI fulfilled its obligations to search in places reasonably likely to produce information about
Magassa.
B. Exemptions
Magassa challenges the FBI’s withholding of information pursuant to various FOIA
exemptions. He alleges that the FBI’s responses did not sufficiently show that all reasonably
segregable, nonexempt materials were disclosed, and that Seidel’s declaration offered conclusory
explanations for the exemptions. ECF 1 ¶¶ 31–52; ECF 24-1 at 12. The FBI moved for summary
judgment on this claim, arguing that each of the exemptions it relied upon were appropriately
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invoked. See ECF 22-2 at 12–27. The Court addresses each of these exemptions in turn and
concludes that the FBI properly invoked the cited exemptions.
1. Exemption 3
The FBI argues that it properly relied on the exemption listed in 5 U.S.C. § 552(b)(3)
(“Exemption 3”) to withhold information that would reveal intelligence sources and methods. ECF
22-2 at 12–14. Under that provision, non-disclosure is appropriate if the information is exempted
by a statute that “requires that the matters be withheld from the public in such a manner as to leave
no discretion on the issue,” or that “establishes particular criteria for withholding or refers to
particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). To support its invocation of
Exemption 3, the FBI cited Section 102A(i)(1) of the National Security Act of 1947, as amended
by the Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. § 3024(i)(1), which
provides that the Director of National Intelligence “shall protect from unauthorized disclosure
intelligence sources and methods.” ECF 22-3 ¶¶ 37–42. Section 3024(i)(1) is a valid Exemption 3
statute, DiBacco v. U.S. Army, 795 F.3d 178, 197 (D.C. Cir. 2015), because it leaves no room for
discretion on whether the information should be withheld from the public—it unambiguously
instructs the Director of National Intelligence to protect “intelligence sources and methods” from
unauthorized disclosure.
Magassa argues that the FBI’s reasoning for invoking Exemption 3 was conclusory and did
not allow for meaningful review, ECF 23 at 13, but the Court disagrees. Having reviewed Seidel’s
declaration, as well as the additional information submitted for in camera review, the Court is
satisfied that the FBI appropriately withheld information that would reveal intelligence sources
and investigation methods if publicly disclosed. As Seidel represented in his declaration,
“disclosure of this information [would] present[] a bona fide opportunity for individuals to develop
and implement countermeasures, resulting in the loss of significant intelligence information,
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sources, and methods relied upon by national policymakers . . . to safeguard national security.”
ECF 22-3 ¶ 42.
2. Exemption 6 and 7(C)
The FBI argues that it properly invoked 5 U.S.C. § 552(b)(6) (“Exemption 6”) and 5 U.S.C.
§ 552(b)(7)(C) (“Exemption 7(C)”) to redact personal identifying information of governmental
employees and third-party individuals mentioned in the responsive records. ECF 22-2 at 15–22.
Exemption 6 provides that personnel files need not be released if their disclosure “would constitute
a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Similarly, Exemption
7(C) exempts from disclosure “records or information compiled for law enforcement purposes” if
the records “could reasonably be expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C). Although the FBI jointly asserted both exemptions to justify
withholding certain information, it relies primarily upon Exemption 7(C) in its Motion for
Summary Judgment. The Court therefore starts its analysis with Exemption 7(C) and, because it
finds that the FBI adequately justified its invocation of that exception, the Court does not also need
to determine the applicability of Exemption 6. See People for the Ethical Treatment of Animals v.
Nat’l Inst. of Health, 745 F.3d 535, 540-41 (D.C. Cir. 2014).
In order for Exemption 7(C) to apply, the FBI must make a threshold showing that the
records at issue were “compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7)(C). An
agency’s claimed purpose is entitled to more deference if that agency’s principal function is law
enforcement. Pub. Emps. for Env’t Resp. v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-
Mexico, 740 F.3d 195, 203 (D.C. Cir. 2014). In his declaration, Seidel stated that the withheld
records “were compiled, created and/or shared in furtherance of the FBI’s law enforcement,
national security, and intelligence missions.” ECF 22-3 ¶ 45. Because the FBI specializes in law
enforcement, the Court affords this representation deference. See Campbell v. DOJ, 164 F.3d 20,
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32 (D.C. Cir. 1998). Taking into account Seidel’s statement and the additional information
provided by the FBI for in camera review, the Court determines that the withheld information was
compiled for law enforcement purposes.
With that established, the Court turns to the reasons that the FBI invoked Exemption 7(C)
to withhold information. In evaluating each of these reasons, the Court “balance[s] the privacy
interests that would be compromised by disclosure against the public interest in the release of the
requested information.” Beck v. DOJ, 997 F.2d 1489, 1491 (D.C. Cir. 1993). The person requesting
the information must show that the requested information would advance a significant public
interest. Nat’l Archives and Recs. Admin. v. Favish, 541 U.S. 157, 172 (2004). Magassa argues
that the records in this case would “increase[e] the public’s understanding of [] FBI operations and
activities,” in particular how the watch list might impair people’s “right to follow a chosen
profession free from government interference and the right to travel, both domestically and
abroad.” ECF 23 at 11–12.
Even assuming that this qualifies as a significant public interest, Magassa has not shown
how the material withheld would advance that interest. The FBI invoked Exemption 7(C) to
withhold identifying information of FBI employees, federal employees, and non-governmental
third parties. ECF 22-2 at 17–22. As a general matter, “FOIA ordinarily does not require disclosure
of law enforcement documents (or portions thereof) that contain private information.” Blackwell
v. FBI, 646 F.3d 37, 41 (D.C. Cir. 2011). That is because “privacy interests are particularly difficult
to overcome when law enforcement information regarding third parties is implicated.” Id. Magassa
does not provide any reason to think this case is unique or that the identifying information withheld
under Exemption 7(C) would advance the public interest he identifies, and therefore the Court
grants summary judgment to the FBI on this exemption.
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3. Exemption 7(E)
The FBI also argues that it appropriately invoked 5 U.S.C. § 552(b)(7)(E) (“Exemption
7(E)”). That provision allows agencies to withhold information “compiled for law enforcement
purposes” to the extent that production of the information “would disclose techniques and
procedures for law enforcement investigations or prosecutions, or would disclose guidelines for
law enforcement investigations or prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). As noted above, the Court is satisfied that
this information was compiled for law enforcement purposes.
The Court also concludes that production of the information “would disclose techniques
and procedures for law enforcement investigations or prosecutions, or would disclose guidelines
for law enforcement investigations or prosecutions if such disclosure could reasonably be expected
to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). In his declaration, Seidel grouped the
information that was withheld into categories, including (1) information related to non-public FBI
web addresses, (2) methods used by the FBI to collect and analyze information, (3) techniques for
administering polygraph examinations, (4) sensitive investigative file numbers, (5) information
related to the location and identify of an FBI squad, (6) information discussing the focus of a
specific FBI investigation, and (7) information related to the types and dates of specific
investigations. ECF 22-3 ¶¶ 57–71. Seidel then described how each category of information relates
to law enforcement techniques and procedures. Id. To take just one example, Seidel explained how
revealing information about the administration of polygraph tests could give future examinees “an
idea of how they might effectively deceive FBI polygraphers, and circumvent the law enforcement
purpose of polygraph examinations.” Id. ¶ 59. This satisfactorily “demonstrate[s] logically how
the release of the requested information might create a risk of circumvention of law.” Blackwell,
646 F.3d at 42.
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C. Segregability Obligations
Under 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.” 5 U.S.C. § 552(b).
That means that “non-exempt portions of a document must be disclosed unless they are
inextricably intertwined with exempt portions.” Kimberlin v. DOJ, 139 F.3d 944, 949 (D.C. Dir.
1998). To withhold the entirety of a document, an agency must demonstrate that it cannot segregate
the exempt material from the non-exempt material. Id. at 949–50.
Magassa argues that the FBI’s justification for not disclosing portions of certain documents
was not detailed enough, and therefore did not fulfill the FBI’s obligation to show why the exempt
portions of the documents it produced could not be further segregated to disclose additional
information. See ECF 23 at 13–14. The Court disagrees, finding that the FBI’s Vaughn Index 2 and
Seidel’s declaration adequately describe the reasons for withholding the exempt portions of some
responsive documents while turning over the non-exempt portions.
In his declaration, Seidel explained that the FBI identified twenty-seven responsive
records. ECF 22-3 at 33. Ten of these records were released in full, and seventeen were released
in part. Id. The Vaughn Index, which lists all twenty-seven documents, notes the specific reason
that certain portions of responsive records were exempt from disclosure and not released. See id.at 64–67. For example, sections of a printout from the Bureau Personnel Management System
were withheld under Exemption 6 because they contained “personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”
See id. at 66. For other documents, the FBI cited multiple exemptions to justify its withholding,
2
A Vaughn Index “consists of a detailed affidavit, the purpose of which is to permit the court system effectively and
efficiently to evaluate the factual nature of disputed information.” John Doe Agency v. John Doe Corp., 493 U.S. 146,
149 n.2 (1989).
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including FOIA Exemptions 3 and 7(E). See id. This document-by-document analysis provides the
sort of “detailed description” needed to assess the FBI’s segregation efforts, and allows the Court
to confirm that the FBI fulfilled its obligations.
D. Glomar Response
Generally, upon receiving a FOIA request, an agency must produce all responsive records,
unless the records fall within one of nine exceptions. See 5 U.S.C. § 552(a)(3)(A), (b). But in
certain circumstances, when disclosing the existence (or non-existence) of responsive records
would itself cause harm cognizable under a FOIA exception, an agency may respond to the FOIA
request by refusing to confirm or deny that it has relevant records. Wolf v. CIA, 473 F.3d 370, 374
(D.C. Cir. 2007). This is known as a “Glomar response.” See Kalu v. IRS, 159 F. Supp. 3d 16, 21
(D.D.C. 2016) (discussing the name’s nautical origins). An agency asserting a Glomar response
bears the burden of showing that the mere fact of whether a record exists or not is protected from
disclosure under one of the nine FOIA exemptions. Wolf, 473 F.3d at 374. “Ultimately, an agency’s
justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Id.at 374–75.
Here, the FBI provided a Glomar response by refusing to confirm or deny whether Magassa
was listed on any government watch list. ECF 22-3 ¶ 9. The FBI stated that the existence of any
watch list records “is protected from disclosure pursuant to 5 U.S.C. § 552a(j)(2) and 5 U.S.C. §
552(b)(7)(E),” and so a Glomar response was appropriate. Id.; see also id. at 56–58. Magassa
challenged that response, arguing that it failed to provide Magassa the information he would need
to challenge such a designation. ECF 23 at 12–13.
Seidel explained that non-disclosure of the existence of the records was appropriate under
Exemption (j)(2) of the Privacy Act, which exempts records “maintained by an agency or
component thereof which performs as its principal function any activity pertaining to the
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enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to
apprehend criminals.” ECF 25-2 ¶ 7 (quoting 5 U.S.C. § 552a(j)(2)). Because watch list records
“would be compiled in furtherance of FBI efforts to track, predict, and thwart terrorist activities,”
Seidel represented that the FBI appropriately declined to confirm or deny the existence of watch
list records. Id. ¶ 8.
Seidel also contended that non-disclosure was appropriate under Exemption 7(E) of FOIA,
which exempts information “compiled for law enforcement purposes” to the extent that the
information “would disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if
such disclosure could reasonably be expected to risk circumvention of the law.” Id. ¶ 11 (quoting
5 U.S.C. § 552(b)(7)(E)); see also id. ¶ 9. Seidel argued that the criteria for placing individuals on
watch lists is not publicly known, so revealing the identities of people on the watch list could allow
others to deduce the criteria and change their behavior to avoid government detection. Id. ¶ 16.
Also, on a more granular level, informing an individual whether or not they are on a watch list
could prompt that individual to alter their conduct and impede an FBI investigation. Id. ¶ 15.
These reasons are logical, and therefore the FBI’s Glomar response is adequate. Cf. Kalu,
159 F. Supp. 3d at 23 (holding that a Glomar response from the FBI was appropriate in response
to a FOIA request asking whether an individual was on a watch list). Watch lists are compiled in
furtherance of the FBI’s law enforcement, national security, and intelligence goals. Disclosing
whether an individual is on a watch list could lead that individual or others to alter their behavior
in an effort to circumvent the law. This reasoning justifies withholding the existence (or non-
existence) of an individual’s name on a watch list.
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Finally, the Court notes that Magassa filed a “Notice of Supplemental Authority” that
highlighted the Fikre v. FBI, 35 F.4th 762 (9th Cir. 2022). ECF 31. In that case, the Ninth Circuit
held that the government does not moot an individual’s lawsuit by removing them from the No Fly
List and promising not to place them on the No Fly List in the future. Id. at 764. That holding,
however, has no bearing on this case. The case does not involve FOIA requests and it does not
discuss the issues being disputed in this case. Therefore, it does not change the Court’s conclusion
about the outcome of this case.
IV. CONCLUSION
For the foregoing reasons, the Court grants the FBI’s Motion for Summary Judgment and
denies Magassa’s Motion for Summary Judgment. A separate Order will accompany this
Memorandum Opinion.
SO ORDERED.
DATE: August 11, 2023
______________________
Jia M. Cobb
U.S. District Court Judge
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