Leopold v. Department of Treasury ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JASON LEOPOLD and
RYAN NOAH SHAPIRO,
Plaintiffs, Civil Action No. 16-1827 (BAH)
v. Chief Judge Beryl A. Howell
DEPARTMENT OF JUSTICE and
DEPARTMENT OF HOMELAND
SECURITY,
Defendants.
MEMORANDUM OPINION
The plaintiffs, Jason Leopold, an investigative reporter, and Ryan Noah Shapiro, “an
historian of national security, the policing of dissent, and governmental transparency,” First Am.
Compl. (“FAC”) ¶¶ 1–2, ECF No. 4, challenge the responses of the Federal Bureau of
Investigation (“FBI”), a component of the Department of Justice (“DOJ”), and the Secret
Service, a component of the Department of Homeland Security, to their four records requests
submitted pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.1 The FOIA
requests at issue seek information about “how” the FBI and Secret Service “referenced or
discussed internally,” Pls.’ Mem. Supp. Cross-Mot. Summ. J. & Opp’n Defs.’ Mot. Summ. J.
(“Pls.’ Opp’n”) at 2, ECF No. 22-1, two statements made in July and August 2016 by then-
Republican presidential candidate Donald Trump, and a third statement made in July 2016 by a
New Hampshire state legislator. These statements, in the plaintiffs’ view, “arguably crossed the
1
The complaint originally challenged the response of the Internal Revenue Service (IRS) to a fifth FOIA
request, but the plaintiffs subsequently voluntarily dismissed the claim against the IRS. See Pls.’ Notice of
Voluntary Dismissal, ECF No. 10.
1
line between free speech and inciting imminent unlawful action.” Id. at 1. The parties have now
cross-moved for summary judgment. Defs.’ Mot. Summ. J. (“Defs.’ Mot.”), ECF No. 18; Pls.’
Cross-Mot. Summ. J. & Opp’n Defs.’ Mot. Summ. J. (“Pls.’ Cross-Mot.”), ECF No. 22. For the
reasons set forth below, the defendants’ motion is granted and the plaintiffs’ cross-motion is
denied.
I. BACKGROUND
A news article published on July 20, 2016, attributed to a New Hampshire legislator,
Alfred P. Baldasaro, the following statement: “Hillary Clinton should be put in the firing line and
shot for Treason.” Defs.’ Statement of Material Facts as to Which There is No Genuine Issue
(“Defs.’ SMF”) ¶ 23 (citing Asawin Suebsaeng, Secret Service Investigating Trump Adviser Al
Baldasaro for Hillary Execution Comments, THE DAILY BEAST (July 20, 2016),
https://www.thedailybeast.com/secret-service-investigating-trump-adviser-al-baldasaro-for-
hillary-execution-comments), ECF No. 18-1.2 This statement purportedly urging the shooting of
a Democratic presidential candidate prompted the U.S. Secret Service Spokesperson Robert
Hoback to give the following statement to the Daily Beast: “The U.S. Secret Service is aware of
this matter and will conduct the appropriate investigation.” Id. ¶¶ 22–23.
The following week, on July 27, 2016, then-candidate Trump stated: “Russia, if you’re
listening, I hope you’re able to find the 30,000 emails that are missing,” and, “I think you will
probably be rewarded mightily by our press.” FAC ¶ 17. Two weeks later, on August 9, 2016,
then-candidate Trump made what the plaintiffs’ characterize as an “astonishing statement” that
“was a thinly veiled threat on Secretary Clinton’s life,” Pls.’ Opp’n at 1, that “[i]f she gets to
pick her judges, nothing you can do, folks,” and, “[a]lthough the Second Amendment people —
2
The facts set forth in the defendants’ Statement of Material Facts as to Which There is No Genuine Issue
are undisputed. See Pls.’ Resp. To Defs.’ SMF, ECF No. 21-1.
2
maybe there is, I don’t know.” FAC ¶ 16. Similarly to the Secret Service’s earlier response to
the state legislator’s statement urging the shooting of the Democratic presidential candidate, the
Secret Service responded to Trump’s statement on the same day, stating in an official Tweet:
“The Secret Service is aware of the comments made earlier this afternoon.” Defs.’ SMF ¶ 24
(emphasis omitted). By contrast, however, to the Secret Service’s earlier response to the New
Hampshire legislator’s statement, the Secret Service’s response to the Trump statement did not
indicate that the agency would conduct any investigation.
These provocative statements by the Republican presidential candidate and a state
legislator prompted the plaintiffs, on August 18, 2016, to submit, by separate emails, two FOIA
requests to the FBI and two FOIA requests to the Secret Service. FAC ¶¶ 23–25, 30–32; Defs.’
SMF ¶¶ 1–2, 22, 24. The plaintiffs explain that “[b]ecause these statements could be viewed as
illegal incitement, they would likely have at least piqued the interest of federal law enforcement
agencies if made by an ordinary citizen,” and the FOIA requests were intended to obtain records
regarding how “federal law enforcement agencies react to such statements from a major political
party’s candidate for President” and “convey their response or lack thereof to the public.” Pls.’
Opp’n at 1.
The responses by each agency are described below.
A. FBI’S RESPONSE TO PLAINTIFFS’ FOIA REQUESTS
The plaintiffs’ FOIA requests to the FBI seek: (1) “disclosure of any and all records,
including investigative records, mentioning or referring to Donald J. Trump’s statements on 9
August 2016, ‘If she gets to pick her judges, nothing you can do folks,’ and ‘Although the
Second Amendment people – maybe there is, I don’t know,’” (“Second Amendment Request”),
Defs.’ SMF ¶1 (quoting Defs.’ Mot., Attach. 5, Decl. of David M. Hardy, Section Chief of
Records Management Division (FBI), dated July 26, 2017 (“Hardy Decl.”) ¶ 5, ECF No. 18-5);
3
and (2) “disclosure of any and all records, including investigative records, mentioning or
referring to Donald J. Trump’s statement on 27 July 2016, ‘Russia, if you’re listening, I hope
you’re able to find the 30,000 emails that are missing,’ and ‘I think you will probably be
rewarded mightily by our press,’” (“Russia Reward Request”), id. ¶2 (quoting Hardy Decl. ¶ 5).3
Relying on FOIA Exemptions 7(A) and 7(E), 5 U.S.C. §§ 552(b)(7)(A) & (E), the FBI,
on November 18, 2016, issued Glomar responses, indicating the agency could “neither confirm
nor deny the existence of records responsive” to either request. Id. ¶ 3–6 (quoting Hardy Decl.
¶¶ 7–8).4 A few months later, however, on March 20, 2017, then-FBI director James Comey
publicly acknowledged for the first time in congressional testimony an ongoing FBI
counterintelligence investigation into “the Russian government’s efforts to interfere in the 2016
presidential election and that includes investigating the nature of any links between individuals
associated with the Trump campaign and the Russian government and whether there was any
coordination between the campaign and Russia’s efforts.” Id. ¶ 7 (quoting Hardy Decl. ¶ 9).
In light of the then-FBI Director’s confirmation of an investigation, and interpreting the
Russia Reward Request as seeking “records from the investigation that Director Comey
acknowledged on March 20, 2017,” the FBI withdrew “its Glomar response, and is now relying
on FOIA Exemption (b)(7)(A) to withhold in full, on a categorical basis, all records responsive
to the” Russia Reward Request. Id. ¶ 9 (citing Hardy Decl. ¶ 11). The FBI construed the Russia
Reward Request to cover “all records from the relevant investigative files (which are now part of
Special Counsel Mueller’s Russia investigation),” and therefore “assum[ed] that the universe of
3
Although each exhibit and submission from the parties has been reviewed, only those exhibits necessary to
provide context for resolution of the instant motion are cited herein.
4
A “Glomar” response that the agency can neither confirm nor deny the existence or non-existence of
responsive records is named after the vessel, the Hughes Glomar Explorer, that was the subject of a FOIA request
for records in Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976).
4
responsive records is co-extensive with the contents of the investigative files as they existed on
March 20, 2017.” Hardy Decl. ¶ 29. The search of the “relevant investigative files” by counsel
from the FBI’s National Security and Cyber Law Branch “confirmed that all records responsive
to Plaintiffs’ request” are part of the Special Counsel’s investigation, and served as the basis for
the FBI’s invocation of Exemption 7(A). Id. ¶¶ 30–31.
The FBI’s Glomar response to the Second Amendment Request relies on Exemptions
7(A) and 7(E). Defs.’ SMF ¶ 4. The FBI explains that Exemption 7(A) is implicated because
declaring “the existence or non-existence of any records responsive to the Second Amendment
Request” would effectively acknowledge the existence or non-existence of “a pending
investigation it has not previously acknowledged, and that, assuming such an investigation
existed, ‘acknowledging its existence prematurely could reasonably be expected to hamper and
interfere with it.’” Id. ¶ 12 (quoting Hardy Decl. ¶ 19). Similarly, the FBI invokes Exemption
7(E), explaining that confirming the existence or non-existence of a previously unacknowledged
investigation “would expose information about the types of statements, actions, allegations, or
threats the FBI deems appropriate to commit (or not commit) investigative resources toward,”
thereby providing “significant insight into the activities likely to attract (or not attract) the FBI’s
law enforcement attention,” which insight could facilitate circumvention of the law without
drawing the FBI’s notice. Id. ¶ 13 (quoting Hardy Decl. ¶ 24).
B. SECRET SERVICE’S RESPONSE TO PLAINTIFFS’ FOIA REQUESTS
The plaintiffs’ FOIA requests to the Secret Service sought records regarding the agency’s
public statements in response to the statement by the New Hampshire legislator urging the
shooting of the Democratic presidential candidate and Trump’s “Second Amendment people”
statement. FAC ¶¶ 30–32; Defs.’ SMF ¶¶ 22, 24. Specifically, the request regarding the New
Hampshire legislator urging the shooting of the Democratic presidential candidate, stated that
5
“On 20 July 2016, U.S. Secret Service Spokesperson Robert Hoback gave the following
statement to the Daily Beast: ‘The U.S. Secret Service is aware of this matter and will conduct
the appropriate investigation,’” and requested “disclosure of any and all records that mention or
refer to the matter,” along with “any records compiled as part of any investigation into the
referenced matter.” Defs.’ SMF ¶ 22 (citing Defs.’ Mot., Attach. 6, Decl. of Kim E. Campbell,
Special Agent in Charge of Secret Service FOIA Division, dated July 12, 2017 (“Campbell
Decl.”) ¶ 4, ECF No. 18-6). The plaintiffs’ other request to the Secret Service stated that “On 9
August 2016, the U.S. Secret Service tweeted the following message: The Secret Service is
aware of the comments made earlier this afternoon,” and requested “disclosure of any and all
records that mention or refer to these comments,” along with “any records compiled as part of
any investigation into the referenced comments.” Id. ¶ 24 (citing Campbell Decl. ¶ 3) (emphasis
in original).
The Secret Service interpreted the first request as seeking information regarding the
agency’s response to “comments that had been attributed to Alfred P. Baldasaro, a member of
the New Hampshire House of Representatives: ‘Hillary Clinton should be put in the firing line
and shot for Treason,’” id. ¶23 (citing Campbell Decl. ¶ 4), and the second request as referring to
Trump’s “Second Amendment people” statement, id. ¶ 24 (citing Campbell Decl. ¶ 3).
Following a search of “all locations likely to contain responsive records,” id. ¶ 25 (citing
Campbell Decl. ¶ 7), and a “line by line [examination], to identify non-exempt information that
could be reasonably segregated from exempt information for release,” id. ¶ 36 (citing Campbell
Decl. ¶ 21), the Secret Service, on or before February 17, 2017, produced “268 pages of
responsive records, most of them in partially redacted form,” id. ¶ 27 (citing Campbell Decl. ¶¶
7–8). The Secret Service withheld information reflected in the partial redactions pursuant to
6
FOIA Exemptions 5, 6, 7(C), and 7(E). Id. ¶ 28 (citing Campbell Decl. ¶ 8). While not disputing
the adequacy of the Secret Service’s search or withholdings under Exemptions 6 or 7(C), the
plaintiffs dispute the redactions on 41 pages under Exemptions 5 and 7(E).5
As urged by the plaintiffs, see Pls.’ Reply Supp. Cross-Mot. Summ. J. (“Pls.’ Reply”) at
22, ECF No. 27, the Court ordered the Secret Service to submit for in camera inspection the
disputed redacted pages, see Minute Order, February 5, 2018.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “In FOIA cases, ‘summary
judgment may be granted on the basis of agency affidavits if they contain reasonable specificity
of detail rather than merely conclusory statements, and if they are not called into question by
contradictory evidence in the record or by evidence of agency bad faith.’” Judicial Watch, Inc.
v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed’n of Am. v. U.S.
Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)) (alteration adopted). Indeed, the D.C.
Circuit has observed that “the vast majority of FOIA cases can be resolved on summary
judgment.” Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).
The FOIA was enacted “to promote the ‘broad disclosure of Government records’ by
generally requiring federal agencies to make their records available to the public on request.”
DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (quoting U.S. Dep’t of Justice v.
Julian, 486 U.S. 1, 8 (1988)). Reflecting the necessary balance between the public’s interest in
5
The disputed pages have the following Bates-stamp numbers: 10, 101, 135, 148–51, 156–58, 165–66, 168–
69, 171, 174–75, 177, 179, 180–81, 183, 185, 187, 189, 195, 208–10, 212–13, 226, 228–29, 231, 233–36, 243, and
252. Defs.’ SMF ¶ 31; Pls.’ Opp’n at 16 n.7 (withdrawing challenge to withholdings on pages 163, 217, 225, 237–
39, and 250); see also Defs.’ Opp’n Cross-Mot. Summ. J. & Reply Supp. Defs.’ Mot. at 25 n.11, ECF No. 23.
7
governmental transparency and “legitimate governmental and private interests that could be
harmed by release of certain types of information,” United Techs. Corp. v. U.S. Dep’t of
Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (quoting Critical Mass Energy Project v. Nuclear
Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc) (alterations omitted)), the
FOIA contains nine exemptions, set forth in 5 U.S.C. § 552(b), which “are explicitly made
exclusive and must be narrowly construed,” Milner v. U.S. Dep’t of Navy, 562 U.S. 562, 565
(2011) (internal quotation marks and citations omitted); see also Murphy v. Exec. Office for U.S.
Attys., 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S.
Dep’t of Justice (“CREW”), 746 F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of
Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). “[T]hese limited exemptions do not
obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.”
Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).
In litigation challenging the sufficiency of “the release of information under the FOIA,
‘the agency has the burden of showing that requested information comes within a FOIA
exemption.’” Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 904
(D.C. Cir. 1999) (quoting Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16,
18 (D.C. Cir. 1999)); see also U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 171 (1993)
(noting that “[t]he Government bears the burden of establishing that the exemption applies”);
Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979) (finding that
the agency invoking an exemption bears the burden “to establish that the requested information
is exempt”); Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014). This
burden does not shift even when the requester files a cross-motion for summary judgment
because “the Government ‘ultimately [has] the onus of proving that the [documents] are exempt
8
from disclosure,’” while the “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., 185 F.3d at 904–05 (quoting Nat’l Ass’n of Gov’t Emps. v.
Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)) (alterations in original).
An agency may carry its burden of showing an exemption was properly invoked by
submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld
documents, or both, to demonstrate that the government has analyzed carefully any material
withheld and provided sufficient information as to the applicability of an exemption to enable the
adversary system to operate. See Judicial Watch, Inc., 726 F.3d at 215 (“In FOIA cases,
‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable
specificity of detail rather than merely conclusory statements, and if they are not called into
question by contradictory evidence in the record or by evidence of agency bad faith.’” (quoting
Consumer Fed’n of Am., 455 F.3d at 287) (alteration adopted)); CREW, 746 F.3d at 1088 (noting
that an agency’s burden is sustained by submitting an affidavit that “describe[s] the justifications
for nondisclosure with reasonably specific detail, demonstrate[s] that the information withheld
logically falls within the claimed exemption, and [is] not controverted by either contrary
evidence in the record nor by evidence of agency bad faith” (quoting Larson v. U.S. Dep’t of
State, 565 F.3d 857, 862 (D.C. Cir. 2009))); Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176
(D.C. Cir. 1996) (instructing that an agency’s description “should reveal as much detail as
possible as to the nature of the document, without actually disclosing information that deserves
protection[,] . . . [which] serves the purpose of providing the requestor with a realistic
opportunity to challenge the agency’s decision.” (internal citation omitted)). While “an agency’s
task is not herculean” it must “‘describe the justifications for nondisclosure with reasonably
9
specific detail’ and ‘demonstrate that the information withheld logically falls within the claimed
exemption.’” Murphy, 789 F.3d at 209 (quoting Larson, 565 F.3d at 862). “Ultimately, an
agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or
‘plausible.’” Judicial Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013)
(quoting ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)); Larson, 565 F.3d at
862 (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)).
The FOIA provides federal courts with the power to “enjoin the agency from withholding
agency records and to order the production of any agency records improperly withheld from the
complainant.” 5 U.S.C. § 552(a)(4)(B). District courts must “determine de novo whether non-
disclosure was permissible,” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777 F.3d
518, 522 (D.C. Cir. 2015), by reviewing the Vaughn index and any supporting declarations “to
verify the validity of each claimed exemption,” Summers v. U.S. Dep’t of Justice, 140 F.3d 1077,
1080 (D.C. Cir. 1998).
In addition, the court has an “affirmative duty” to consider whether the agency has
produced all segregable, non-exempt information. Elliott v. U.S. Dep’t of Agric., 596 F.3d 842,
851 (D.C. Cir. 2010) (referring to court’s “affirmative duty to consider the segregability
issue sua sponte” (quoting Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007))); Stolt–Nielsen
Transp. Grp. Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008) (“[B]efore approving the
application of a FOIA exemption, the district court must make specific findings of segregability
regarding the documents to be withheld.” (quoting Sussman v. U.S. Marshals Serv., 494 F.3d
1106, 1116 (D.C. Cir. 2007))); Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d
1022, 1028 (D.C. Cir. 1999) (“[W]e believe that the District Court had an affirmative duty to
consider the segregability issue sua sponte . . . even if the issue has not been specifically raised
10
by the FOIA plaintiff.”); see also 5 U.S.C. § 552(b) (“Any reasonably segregable portion of a
record shall be provided to any person requesting such record after deletion of the portions which
are exempt under this subsection.”).
III. DISCUSSION
The plaintiffs challenge aspects of the responses of both the FBI and the Secret Service to
their four FOIA requests, as discussed below.
A. THE FBI CONDUCTED AN ADEQUATE SEARCH AND PROPERLY
WITHHELD RECORDS
The FBI released no records in response to either of the plaintiffs’ FOIA requests,
invoking Exemption 7(A) as to the Russia Reward Request and a Glomar response, predicated
on Exemptions 7(A) and 7(E), as to the Second Amendment Request. The plaintiffs contend that
the FBI conducted an inadequate search for records responsive to both requests, due to the FBI’s
construction of the requests as seeking only investigative records, and improperly withheld
records.
1. The Russia Reward Request
The crux of the plaintiffs’ dispute over the FBI’s response to the Russia Reward Request
stems from the FBI’s construction of this request: namely, the FBI, as a law enforcement agency,
interpreted the plaintiffs’ request as seeking “the sort of records that the FBI was likely to have
(if any).” Defs.’ Opp’n Cross-Mot. Summ. J. & Reply Supp. Defs.’ Mot. (“Defs.’ Opp’n”) at 5,
ECF No. 23. Consequently, the FBI searched “for only investigative records,” id. (quoting Ex.
A, Second Decl. of David M. Hardy, dated Sept. 19, 2017 (“Second Hardy Decl.”) ¶ 6, ECF No.
23-3), “coextensive with the FBI’s Russia investigation (at least, as it stood on the search cut-off
date of March 20, 2017), id. at 9. This active and ongoing investigation is now being supervised
by Special Counsel Robert S. Mueller, III. See Hardy Decl. ¶¶ 27, 31–32. The plaintiffs
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complain that this “construction is both broader and narrower than Plaintiffs’ request.” Pls.’
Opp’n at 2; Pls.’ Reply at 4 (complaining that the FBI did not process the “Russia request
consistent with how it is written”). Contrary to the plaintiffs’ position, the FBI reasonably
interpreted the Russia Reward Request.
As the plaintiffs correctly point out, “[a]gencies have ‘a duty to construe a FOIA request
liberally,’” People for the Ethical Treatment of Animals v. Nat’l Institutes of Health, Dep’t of
Health & Human Servs. (“PETA”), 745 F.3d 535, 540 (D.C. Cir. 2014) (quoting Nation
Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)), but
that duty does not obviate the requester’s burden to “‘reasonably describe[ ]’ the records sought,”
Nation Magazine, 71 F.3d at 890 (quoting 5 U.S.C. § 552(a)(3)) (alteration in original). “The
linchpin inquiry is whether the agency is able to determine precisely what records [are] being
requested,” Yeager v. DEA, 678 F.2d 315, 326 (D.C. Cir. 1982) (internal quotation marks
omitted), with the responsibility firmly on the requester “to frame requests with sufficient
particularity to ensure that searches are not unreasonably burdensome,” Assassination Archives
& Research Ctr., Inc. v. CIA, 720 F. Supp. 217, 219 (D.D.C. 1989), aff’d, No. 89-5414, 1990
U.S. App. LEXIS 27799 (D.C. Cir. Aug. 13, 1990) (citing Yeager, 678 F.2d 315). Moreover,
agencies “are not required to . . . perform searches which are not compatible with their own
document retrieval systems,” id., and they “need not respond to overly broad and unreasonably
burdensome requests,” Judicial Watch, Inc. v. U.S. Dep’t of State, 681 F. App’x 2, 4 (D.C. Cir.
2017) (citing Am. Fed’n of Gov’t Emps. v. U.S. Dep’t of Commerce, 907 F.2d 203, 208–09 (D.C.
Cir. 1990)); see also Anderson v. U.S. Dep’t of State, 661 F. Supp. 2d 6, 12 n.3 (D.D.C. 2009)
(an agency does not have to “honor a FOIA request that requires it to conduct an unduly
burdensome search” (quoting Pub. Citizen, Inc. v. U.S. Dep’t of Ed., 292 F. Supp. 2d 1, 6 (D.D.C.
12
2003))). When confronted with a challenge to the adequacy of a search, “an ‘agency must show
that it made a good faith effort to conduct a search for the requested records, using methods
which can be reasonably expected to produce the information requested,’ which it can do by
submitting ‘[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 (if such records exist)
were searched.’” Reporters Comm. for Freedom of Press v. FBI, 877 F.3d 399, 402 (D.C. Cir.
2017) (quoting Oglesby, 920 F.2d at 68) (alteration in original).
In the plaintiffs’ view, the FBI’s interpretation of the Russia Reward Request was too
narrow since the reference in the request to “investigative files” was prefaced by the word
“including,” and thereby indicated that the “request was not limited solely to investigative files
and thus would include records beyond Special Counsel Muller’s [sic] investigative files.” Pls.’
Opp’n at 3. The FBI does not dispute that, “taken literally and divorced from context, the plain
text of these requests, standing alone, would call for non-investigative records (to the extent they
exist).” Defs.’ Opp’n at 4. Yet, the FBI has credibly explained that such a literal construction of
this request “as seeking more than law enforcement records” would be “overly broad, unduly
burdensome, and inadequate to describe the records sought,” such that the FBI “would have been
unable to craft a reasonable search for such non-investigative records.” Second Hardy Decl. ¶ 8.
Indeed, FOIA requests with similarly broad phrasing as the plaintiffs’ request for “any and all
records . . . mentioning or referring to” Trump’s Russia Reward statement, Defs.’ SMF ¶ 2,
without any more specification of targeted locations or more particularity have been found
“fatally overbroad and burdensome,” Freedom Watch, Inc. v. U.S. Dep’t of State, 925 F. Supp.
2d 55, 61 (D.D.C. 2013) (granting summary judgment to agency confronted with FOIA request
for “‘all’ records that ‘relate to’” a subject); see also Cable News Network, Inc. v. FBI, 271 F.
13
Supp. 3d 108, 110, 112 (D.D.C. 2017) (holding that a request for “[a]ny and all documents and
records” relating to memoranda written by former FBI Director Comey was fatally overbroad);
Dale v. IRS, 238 F. Supp. 2d 99, 104 (D.D.C. 2002) (finding FOIA request for “any and all
documents, including but not limited to files, that refer or relate in any way to” an individual did
“not describe the records sought with ‘reasonably sufficient detail’ in light of both statutory
guidance and case law”).
For example, the plaintiffs criticize the FBI for not “look[ing] for noninvestigative
records within its Central Records System (CRS),” Pls.’ Reply at 4, or in other possible locations
such as “within the FBI’s Office of Public Affairs (responding to questions from reporters);
senior leadership (discussing the matters internally); and the FBI’s Moscow overseas office (with
respect to the Russia request),” id. at 3. This criticism, however, only proves the FBI’s point. At
the outset, a CRS search is typically used for “investigative, law-enforcement records,” Second
Hardy Decl. ¶ 8, not the non-investigative records that the plaintiffs apparently had in mind. In
any event, a search of CRS “was not necessary in this case because the responsive records were
located by other means.” Hardy Decl. ¶ 30. Specifically, subject matter experts from the
National Security and Cyber Law Branch (“NSCLB”) of the FBI’s Office of General Counsel
(“OGC”), “who were already familiar with the relevant records,” id., were called upon to
conduct a “manual search and review of the entirety of the relevant investigative files” before
“confirm[ing]” that all responsive records were now part of the Special Counsel’s investigation,
id. ¶ 31.
Moreover, the plaintiffs’ suggested non-exhaustive list of potential locations for searches
illustrates the broad scope of the request as to non-investigative records without providing “a
sufficient description of the records sought to permit a search.” Second Hardy Decl. ¶ 8. As the
14
defendants explain, “[d]ivorced from the context of the FBI’s investigative, law enforcement
functions, literally any one of the FBI’s more than 35,000 employees might have had an email
mentioning one of the campaign comments in question,” but “‘[w]ithout identified (or even
described) employee-custodians, the FBI cannot conduct e-mail or electronic searches’” due to
technical search limitations within the agency. Defs.’ Opp’n at 5–6 (quoting Second Hardy
Decl. ¶ 8); see also Second Hardy Decl. ¶ 8 (“[I]t is simply not reasonable (or even feasible) to
ask every FBI office and the more than 35,000 employees of the FBI to conduct searches for
some unspecified, non-investigative records, unrelated to the FBI’s law-enforcement mission,
which may or may not exist, about two comments made by a Presidential candidate.” (emphasis
in original)); Defs.’ Opp’n at 6 (noting that plaintiffs’ request for non-investigative records is so
broad and non-specific that it is beyond the FBI’s “technical capability” (quoting Second Hardy
Decl. 8)).6
Even if the FBI’s interpretation of their request as “seeking all records from the relevant
investigative files” of Special Counsel Mueller, Hardy Decl. ¶ 29, was “a reasonable one,” the
plaintiffs assert that the FBI nonetheless lacked authority to apply a “saving construction” of the
request “without prior notice or permission from Plaintiffs,” Pls.’ Reply at 1–2. Absent such
prior notice of the FBI’s otherwise concededly “reasonable” interpretation, the plaintiffs “seek an
order . . . requiring the FBI to process the Russia request as written.” Id. at 9. The plaintiffs’
6
The plaintiffs rely on “cases within this Circuit [that] have often disapproved of agencies narrowing the
scope of a FOIA request to exclude materials reasonably within the description provided by the requester,” Pls.’
Reply at 1 (quoting Nat’l Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 102 (D.D.C. 2013)), but this reliance is
misplaced. The plaintiffs cite, for example, LaCedra v. Exec. Office for U.S. Attorneys, 317 F.3d 345, 346–47 (D.C.
Cir. 2003), where the court concluded that the agency improperly narrowed a request for “all documents pertaining
to” plaintiff’s criminal case to “only the specifically enumerated items.” By contrast to such cases in which an
agency improperly narrows an otherwise clear FOIA request and thereby improperly delimits the search, here the
FBI necessarily narrowed the scope of the Russia Reward Request to “only investigative records” because a more
expansive reading to cover non-investigative records “would have prevented the FBI from being able to conduct an
adequate search.” Defs.’ Mem. Supp. Defs.’ Mot at 21, ECF No. 18-2.
15
invitation to impose an obligation on agencies to provide notice and/or to confer with a requester
before construing an otherwise fatally overbroad request in a manner to which a response may be
provided, is declined. As support, the plaintiffs cite to 28 C.F.R. § 16.3(b), which directs DOJ
components to clarify FOIA requests with requestors if the request “does not reasonably describe
the records sought.” This regulation is unavailing, however. This regulation is inapplicable
since the Russia Reward Request’s reference to “investigative records” provided a reasonable
description of the records sought and allowed the FBI to limit the scope of the request to a
reasonably manageable search, avoiding the need to trigger any conferral obligation under the
cited regulation. Moreover, even if the regulation were applicable and the FBI had made an
effort to confer with the plaintiffs to narrow the scope of their Russia Reward Request, the
plaintiffs’ posture in this litigation in continuing to seek non-investigative records indicates that
any such conferral would have been futile. Thus, while the law is clear that FOIA requests must
be liberally construed, this obligation is limited by the agency’s ability to identify the locations
where the requested records may be located and the concomitant administrative burdens of
conducting the search with available search tools.
The plaintiffs further complain that the FBI’s construction of their Russia Reward request
was too broad because “Special Counsel Muller’s [sic] investigative file would include
documents that do not ‘mention[] or refer[]’ to Mr. Trump’s statement about Secretary Clinton’s
emails.” Pls.’ Opp’n at 2–3 (alterations in original). As the plaintiffs explain, their request was
drafted “so as to obtain records about the FBI’s response to a public call for a foreign
government to violate United States law, not to obtain any and every record about the Trump
campaign’s potential collusion with Russia (i.e., the documents now contained in Muller’s [sic]
investigative file).” Pls.’ Opp’n at 4. The plaintiffs’ critique that the FBI’s interpretation of the
16
Russia Reward Request as co-extensive with the Special Counsel’s investigative files is over-
broad may be accurate, but that observation does not help the plaintiffs. As the defendants note,
this overbroad interpretation of the request “would [not] have actually missed any [responsive]
documents.” Defs.’ Opp’n at 9 (citing Hemenway v. Hughes, 601 F. Supp. 1002, 1005 (D.D.C.
1985). Whether the FBI categorically withholds all materials that are part of the Special
Counsel’s investigation, or just the subset that “mention[] or refer[] to” Trump’s statement,
Hardy Decl. ¶ 5, makes no difference in the applicability of Exemption 7(A), Defs.’ Opp’n at 9–
10.
FOIA’s Exemption 7(A) allows an agency to withhold “records or information compiled
for law enforcement purposes,” but only to the extent that the production of such records or
information “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C.
§ 552(b)(7)(A). In adopting 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 [comes] time to present their
case.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978). In this case, the FBI has
amply established that the investigative materials now part of the Special Counsel’s investigation
were “compiled for law enforcement purposes,” 5 U.S.C. § 552(b)(7), and are “part of an active,
ongoing counterintelligence investigation,” Hardy Decl. ¶ 32, such that production of these
records “could reasonably be expected to interfere with enforcement proceedings,” 5 U.S.C. §
552(b)(7)(A). As the agency’s declarant explains, disclosure of any specific records “would
reveal non-public information about the nature and scope of the pending investigation, the extent
to and manner in which the comment fit within (or was deemed irrelevant to) the larger
17
investigation as a whole (if at all), the relative significance of the comment (or lack thereof) to
the investigation, and so on.” Second Hardy Decl. ¶ 10.
Although the plaintiffs apparently contest the applicability of Exemption 7(A), see Pls.’
Reply at 9–10 (stating that “Plaintiffs’ response should not be understood as a concession that
the assertion of Exemption 7(A) is proper”), the focus of their dissatisfaction is with the FBI’s
blanket invocation of this exemption without “conduct[ing] a document-by-document review in
order to assign documents to the proper category,” id. at 5 (quoting Bevis v. U.S. Dep’t of State,
801 F.2d 1386, 1389 (D.C. Cir. 1986)). The plaintiffs’ characterization is contrary to the
description provided by the FBI about how the search was conducted. Specifically, the FBI had
subject matter experts from the NSCLB of the FBI’s OGC conduct a “manual search and review
of the entirety of the relevant investigative files.” Hardy Decl. ¶ 31. The agency then withheld
records “on a categorical basis,” Defs.’ Mem. Supp. Defs.’ Mot at 24, ECF No. 18-2, because
even a Vaughn index or other precise description of the records being withheld would “reveal
non-public information about the targets and scope of the investigation” which “could reasonably
be expected to” interfere with it, Hardy Decl. ¶ 35. In lieu of specific information about each
withheld record, the agency describes for each type of responsive record, how disclosure could
interfere with the Special Counsel’s investigation and any prospective enforcement proceedings.
Id. ¶¶ 38, 41–51.
In considering the plaintiffs’ objection to the manner in which the FBI has invoked
Exemption 7(A), the Court is mindful that categorical withholdings under Exemption 7(A) may
be appropriate. See Robbins Tire, 437 U.S. at 224, 236 (holding that 7(A) allows “certain
generic determinations [to] be made” and “that Congress did not intend to prevent the federal
courts from determining that, with respect to particular kinds of enforcement proceedings,
18
disclosure of particular kinds of investigatory records while a case is pending would generally
‘interfere with enforcement proceedings’” (quoting 5 U.S.C. § 552(b)(7)(A))); CREW, 746 F.3d
at 1098 (“Categorical withholding is often appropriate under Exemption 7(A).”); Manning v.
U.S. Dep’t of Justice, 234 F. Supp. 3d 26, 35 (D.D.C. 2017) (“[A] document-by-document
approach is not required, however, when invoking Exemption 7(A).”). In this case, the FBI has
provided a sufficient explanation, see Second Hardy Decl. ¶ 10, to render the categorical
withholding permissible. See Judicial Watch, Inc., 726 F.3d at 215 (an affidavit must “contain
reasonable specificity of detail rather than merely conclusory statements” to support the
categorical use of Exemption 7(A) (quoting Consumer Fed’n of Am., 455 F.3d at 287)); Bevis,
801 F.2d at 1389 (holding that an agency may “group[] documents into relevant categories that
are sufficiently distinct to allow a court to grasp ‘how each . . . category of documents, if
disclosed, would interfere with the investigation’” (quoting Campbell v. U.S. Dep’t of Health &
Human Services, 682 F.2d 256, 265 (D.C. Cir. 1982))).7
Accordingly, the defendants are entitled to summary judgment with respect to the
plaintiffs’ Russia Reward Request.
2. The Second Amendment Request
The plaintiffs contend that the FBI’s Glomar response, predicated on Exemptions 7(A)
and/or 7(E), to the Second Amendment Request is improper because the FBI has failed to satisfy
the requirements of Exemption 7(A) with “evidence that there is a ‘concrete prospective law
enforcement proceeding.’” Pls.’ Reply at 14 (quoting Carson v. U. S. Dep’t of Justice, 631 F.2d
7
In light of the “affirmative duty” to consider whether the agency has produced all segregable, non-exempt
information, Elliott, 596 F.3d at 851 (quoting Morley, 508 F.3d at 1123), the Court notes that the FBI, which is
“entitled to a presumption that [it] complied with the obligation to disclose reasonably segregable material,”
Sussman, 494 F.3d at 1117, has met its burden by explaining that “given the active and fluid nature of the
investigation, the sensitivities of the materials, and the reasonable expectation of harm from premature disclosure of
investigative materials here, the FBI has concluded that no non-exempt information exists that can be reasonably
segregated and released,” Hardy Decl. ¶ 52.
19
1008, 1018 (D.C. Cir. 1980).8 The FBI argues that its Glomar response is supported by
Exemption 7(A) because “any responsive records . . . would necessarily relate to an FBI
investigation the existence of which has never been publicly confirmed or denied.” Defs.’ Opp’n
at 12.
“In certain cases, merely acknowledging the existence of responsive records would itself
‘cause harm cognizable under [a] FOIA exception.’” PETA, 745 F.3d at 540 (quoting Wolf, 473
F.3d at 374) (alteration in original). In such cases, “an agency can issue a Glomar response,
refusing to confirm or deny its possession of responsive documents,” and “[a] Glomar response
is valid ‘if the fact of the existence or nonexistence of agency records falls within a FOIA
exemption.’” Id. (quoting Wolf, 473 F.3d at 374). To determine whether acknowledging the
existence or non-existence of responsive records “fits a FOIA exemption, courts apply the
general exemption review standards established in non-Glomar cases.” Wolf, 473 F.3d at 374;
accord ACLU v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013). Thus, the agency bears the burden of
showing that the fact of whether it possesses requested records is protected from disclosure under
a FOIA exemption. See Wolf, 473 F.3d at 374.
Exemption 7(A) protects records when disclosure “could reasonably be expected to
interfere with enforcement proceedings,” 5 U.S.C. § 552(b)(7)(A), where those proceedings are
“pending or reasonably anticipated,” Mapother v. U.S. Dep’t of Justice, 3 F.3d 1533, 1540 (D.C.
Cir. 1993) (emphasis in original). The plaintiffs, citing Mapother, Pls.’ Reply at 13, contend that
8
The plaintiffs also contend that, similarly to their Russia Reward Request, the FBI improperly construed the
Second Amendment Request “as seeking only investigative records.” Pls.’ Opp’n at 13 (quoting Hardy Decl. ¶ 19
n.3). This contention is not persuasive. The FBI properly construed the plaintiffs’ Second Amendment Request for
“any and all records mentioning or referring to” then-candidate Trump’s “Second Amendment people” statement as
seeking investigative records since otherwise the request “would be overly broad, unduly burdensome, and
inadequate to describe the records sought,” such that “[t]he FBI would have been unable to craft a reasonable search
for such non-investigative records unconnected to the FBI’s law-enforcement mission.” Second Hardy Decl. ¶ 8.
20
the FBI has not shown that such enforcement proceedings are “contemplated,” id. (quoting
Mapother, 3 F.3d at 1540), with respect to then-candidate Trump’s “Second Amendment people”
statement. Moreover, the plaintiffs assert that “it is conceptually incoherent to premise a Glomar
response on Exemption 7(A),” because this exemption “ʻis temporal in nature,’ and an agency
must show not only ‘that the material withheld relates to a concrete prospective law enforcement
proceeding,’ but also that ‘[t]he proceeding . . . remain[s] pending at the time of our decision, not
only at the time of the initial FOIA request.’” Pls.’ Opp’n at 8 (quoting CREW, 746 F.3d at
1097) (alterations in original).
The defendants, however, correctly point out that the relevant inquiry “is not whether the
hypothetical investigation is actually pending,” but “whether confirming or denying its existence
via a substantive FOIA response would cause harm that is protected under” Exemption 7(A).
Defs.’ Opp’n at 16. The agency affidavit sufficiently explains why disclosure of the Glomar fact
would result in the type of harm Exemption 7(A) protects against. See Wolf, 473 F.3d at 374
(“In determining whether the existence of agency records vel non fits a FOIA exemption, courts
apply the general exemption review standards established in non-Glomar cases.”). Specifically,
requiring the FBI to respond to the Second Amendment Request with a substantive report would
effectively reveal whether or not the agency instituted an investigation of then-candidate
Trump’s “Second Amendment people” comment, which “some interpreted as [] threatening
another presidential candidate.” Second Hardy Decl. ¶ 6. No such investigation of what the
plaintiffs describe as “veiled threats made by a major political party’s presidential candidate
against his opponent,” Pls.’ Opp’n at 11, has been publicly acknowledged, and any response
other than a Glomar response would establish the existence or non-existence of an investigation
prompted by then-candidate Trump’s “Second Amendment people” comment, see James
21
Madison Project v. U.S. Dep’t of Justice, No. 17-cv-00144, 2018 U.S. Dist. LEXIS 1674 at *7
(D.D.C. Jan. 4, 2018) (granting summary judgment to FBI on assertion of Glomar response
based on Exemption 7(A) and accepting agency’s explanation “that merely acknowledging the
existence or non-existence of responsive records in the FBI’s files would require the FBI to
confirm or deny whether it has and is investigating the alleged dossier and synopsis, either in a
separate investigation or as part of its Russian interference investigation, which itself could
hamper and interfere with any such investigation” (internal quotation marks omitted)); Valdez v.
U.S. Dep’t of Justice, 474 F. Supp. 2d 128, 133–34 (D.D.C. 2007) (finding that “DEA adequately
justified its decision neither to confirm nor deny the existence of responsive records” pertaining
to confidential informant who testified at requester’s criminal trial by relying on Glomar and
Exemption 7(A)); Cozen O’Connor v. U.S. Dep’t of Treasury, 570 F. Supp. 2d 749, 789 (E.D.
Pa. 2008) (granting summary judgment to agency on assertion of Glomar response based on
Exemptions 1 and 7(A), noting that agency “has never publicly revealed that it has opened
investigatory evidentiary files on these sixteen organizations nor has it stated that it is actively
investigating any one of the sixteen organizations” that were the subject of the FOIA request at
issue).
If an investigation related to then-candidate Trump’s “Second Amendment people”
statement did exist, any confirmation in response to the plaintiffs’ FOIA request “could
reasonably be expected to interfere with enforcement proceedings,” 5 U.S.C. § 552(b)(7)(A),
because disclosure “would tip off subjects and persons of investigative interest, thus giving them
the opportunity to take defensive actions to conceal their criminal activities, elude detection, and
suppress and/or fabricate evidence. It would also expose any potential witnesses or sources to
harassment, intimidation, or coercion.” Defs.’ SMF ¶ 12 (quoting Hardy Decl. ¶ 19).
22
As the D.C. Circuit noted with respect to Exemption 7(C), if an agency “were required to
acknowledge responsive documents in instances where there was no investigation but were
permitted to give a Glomar response in cases where there had been one, it would become
apparent that a Glomar response really meant that an investigation had occurred.” PETA, 745
F.3d at 544. The same logic applies to Exemption 7(A) in the instant case: “The agency must be
permitted to issue a Glomar response in both situations to maintain the uncertainty essential to
Glomar’s efficacy.” Id.; see Hardy Decl. ¶ 19 (“[A]ssuming that the FBI does not have any
pending investigation on this subject, the FBI’s Glomar response is nevertheless required,
because if the FBI were to invoke a Glomar response only when it actually possessed responsive
records, the Glomar response would be interpreted as an admission that responsive records exist,
thus rendering it ineffective.”).9
Accordingly, the FBI properly issued a Glomar response to the plaintiffs’ Second
Amendment Request, entitling the defendants to summary judgment on this aspect of the
plaintiffs’ claim.
B. THE SECRET SERVICE PROPERLY WITHHELD RECORDS
In response to the plaintiffs’ two FOIA requests to the Secret Service, the agency
produced 268 pages of records with a number of redactions that the agency contends are justified
by several exemptions. Only certain of the redactions under Exemptions 5 and 7(E) are disputed.
Defs.’ SMF ¶ 31; Pls.’ Opp’n at 16 n.7; Defs.’ Opp’n at 24 & n.10.10 The plaintiffs argue that
9
Having resolved the sufficiency of the FBI’s Glomar response to the Second Amendment Request on the
basis of Exemption 7(A), the plaintiffs’ vigorous challenge to the appropriateness of the FBI’s invocation of
Exemption 7(E) to this same request need not be addressed. See Judicial Watch, Inc., 715 F.3d at 940 n.4 (having
resolved propriety of withholding under Exemption 1, no need to “reach” “agency’s alternative argument that some
of the images could be withheld under FOIA Exemption 3”); Larson, 565 F.3d at 862–63 (“[A]gencies may invoke
the exemptions independently and courts may uphold agency action under one exemption without considering the
applicability of the other.”).
10
Specifically, the plaintiffs dispute the redactions under Exemption 5 on bates-numbered pages 10, 101, 183,
210, 226, 229, 231, and 252, Defs.’ Opp’n at 25 n.11; Campbell Decl. ¶ 11, and the redactions under both
23
the agency’s explanations are too “general” to support these disputed redactions and suggest in
camera review “to supplement the Secret Service’s declaration.” Pls.’ Reply at 21–22. The
Court has reviewed in camera unredacted copies of the pages at issue, along with a supplemental
declaration, see Decl. of Brian S. Lambert, Special Agent in Charge, Protective Intelligence and
Assessment Division, U.S. Secret Service, dated February 20, 2018 (“Lambert Decl.”), to
determine whether the redactions under Exemption 5 and Exemption 7(E) were appropriate. As
explained below, beginning with consideration of the redactions under Exemption 5, the Secret
Service properly withheld the disputed records.11
FOIA’s Exemption 5 applies to “inter-agency or intra-agency memorandums or letters
that would not be available by law to a party other than an agency in litigation with the agency.”
5 U.S.C. § 552(b)(5). Two conditions must be met for a record to qualify for this exemption and
be withheld: “[1] its source must be a Government agency, and [2] it must fall within the ambit
of a privilege against discovery under judicial standards that would govern litigation against the
agency that holds it.” U.S. Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S.
1, 8 (2001); see also Nat’l Inst. of Military Justice v. U.S. Dep’t of Def., 512 F.3d 677, 680 & n.4
(D.C. Cir. 2008). Exemption 5 may be used to withhold records subject to “the deliberative-
process privilege, the attorney-client privilege, and the attorney work-product privilege.” Nat’l
Ass’n of Criminal Def. Lawyers v. U.S. Dep’t of Justice Exec. Office for U.S. Attys. & U.S. Dep’t
Exemption 5 and 7(E) on bates-numbered pages 135, 148–51, 156–58, 165–66, 168–69, 171, 174–75, 177, 179,
180–81, 185, 187, 189, 195, 208–09, 212–13, 228, 233–36, and 243, Defs.’ Opp’n at 24 n.10; Decl. of Brian S.
Lambert, Special Agent in Charge, Protective Intelligence and Assessment Division, U.S. Secret Service ¶ 10 n.1
(clarifying that certain disputed redactions were “subject to withholding under both Exemption 5 and Exemption
7(E), notwithstanding any implication in the Campbell Declaration that they were only subject to withholding under
one of those two exemptions”). The Lambert Declaration was filed in camera as part of the Secret Service’s in
camera production of the pages at issue, and the portion of that Declaration cited here is unsealed.
11
The Secret Service’s in camera production was also reviewed with consideration given to the Court’s
“affirmative duty” to consider whether the agency has produced all segregable, non-exempt information, Elliott, 596
F.3d at 851 (quoting Morley, 508 F.3d at 1123), and the Court concurs with the Campbell Declaration that “[n]o
reasonably segregable nonexempt portions of the documents have been withheld,” Campbell Decl. ¶ 21.
24
of Justice, 844 F.3d 246, 249 (D.C. Cir. 2016) (citing Coastal States Gas Corp. v. U.S. Dep’t of
Energy, 617 F.2d 854, 862 (D.C. Cir. 1980)).
For the deliberative process privilege to apply, the materials must be “both predecisional
and deliberative.” Mapother, 3 F.3d at 1537. A document is predecisional if “it was generated
before the adoption of an agency policy” and is deliberative if “it reflects the give-and-take of the
consultative process.” Coastal States, 617 F.2d at 866. Thus, Exemption 5 “covers
recommendations, draft documents, proposals, suggestions, and other subjective documents
which reflect the personal opinions of the writer rather than the policy of the agency.” Id.
“Factual material that does not reveal the deliberative process is not protected by this
exemption.” Morley, 508 F.3d at 1127 (quoting Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir.
1983), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984)). The D.C. Circuit has
emphasized that “[t]he identity of the parties to the memorandum is important; a document from
a subordinate to a superior official is more likely to be predecisional, while a document moving
in the opposite direction is more likely to contain instructions to staff explaining the reasons for a
decision already made.” Coastal States, 617 F.2d at 868.
The defendants explain that the Exemption 5 withholdings on pages 10 and 101 cover
“pre-decisional deliberations between subordinates and supervisors regarding how to respond (if
[a]t all) to media inquiries concerning the public comments that are the subject of Plaintiffs’
Second Amendment request.” Campbell Decl. ¶ 11. Similarly, the defendants explain that the
redactions on the remaining disputed pages “protect the deliberative process that was used to
determine what particular course of criminal investigative or protective action, if any, was to be
taken in response to the public comments that were the subject of both of Plaintiffs’ FOIA
requests,” and similarly “contain the pre-decisional opinions and thoughts of a variety of Secret
25
Service employees . . . about how the Secret Service should respond (if at all) to potential threats
or perceived threats to Secret Service protectees,” which opinions and thoughts “played a part in
the process by which specific decisions were made” in response. Id. ¶ 13; Lambert Decl. ¶ 10
n.1.
Review of the redacted text on each of those pages confirms that this material is indeed
pre-decisional and deliberative, and protected from disclosure under Exemption 5. The redacted
information “reflects the give-and-take of the consultative process,” Coastal States, 617 F.2d at
866, as employees of the Secret Service “prepared for and participated in discussions with upper
and lower level management about how the Secret Service should respond (if at all) to potential
threats or perceived threats to Secret Service protectees,” Campbell Decl. ¶ 13. While some of
the redacted material is “‘factual’ in form,” the D.C. Circuit has held that Exemption 5 is
nonetheless applicable if that material “reflect[s] an agency’s preliminary positions or
ruminations about how to exercise discretion on some policy matter” or would “reveal an
agency’s or official’s mode of formulating or exercising policy-implicating judgment,”
Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992) (Ginsburg,
J.), and the redacted material meets that standard.
The redactions on pages 135, 148–51, 156–58, 165–66, 168–69, 171, 174–75, 177, 179,
180–81, 185, 187, 189, 195, 208–09, 212–13, 228, 233–36, and 243 were also justified under
Exemption 7(E). This exemption protects law enforcement records for which disclosure “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). The
“requirement that disclosure risk circumvention of the law ‘sets a relatively low bar for the
26
agency to justify withholding.’”12 Pub. Employees for Envtl. Responsibility v. U.S. Section, Int’l
Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 204–05 (D.C. Cir. 2014) (quoting
Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011)). The D.C. Circuit has held that “[t]o clear
that relatively low bar, an agency must demonstrate only that release of a document might
increase the risk ‘that a law will be violated or that past violators will escape legal
consequences.’” Id. at 205 (quoting Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir.
2009)). “Rather than requiring a highly specific burden of showing how the law will be
circumvented, exemption 7(E) only requires that the [agency] demonstrate logically how the
release of the requested information might create a risk of circumvention of the law.” Blackwell,
646 F.3d at 42 (quoting Mayer Brown, 562 F.3d at 1194) (alteration in original).
The Secret Service explains that the material redacted under Exemption 7(E) on pages
135, 148–51, 156–58, 165–66, 168–69, 171, 174–75, 177, 179, 180–81, 185, 187, 189, 195, 208–
09, 212–13, 228, 233–36, and 243 “relate[s] to certain specific techniques that the Secret Service
uses in order to both detect and investigate potentially threatening comments,” as well as
“internal analysis,” the release of which “would reveal the techniques used” for threat
assessment. Campbell Decl. ¶ 19; Lambert Decl. ¶ 10 n.1. According to the agency, release of
the information “would offer would-be violators of the law a powerful road map,” Lambert Decl.
¶ 11, which “would enable the targets of those methods and techniques to avoid detention and to
develop countermeasures against the Secret Service’s use of such methods and procedures,”
Campbell Decl. ¶ 19. This explanation “demonstrate[s] logically how the release of th[at]
12
Despite some disagreement among the circuits as to whether the phrase “could reasonably be expected to
risk circumvention of the law” applies only to “guidelines for law enforcement investigations,” or to “techniques and
procedures” as well, the D.C. Circuit “has applied the ‘risk circumvention of the law’ requirement both to records
containing guidelines and to records containing techniques and procedures,” noting that “given the low bar posed by
the ‘risk circumvention of the law’ requirement, it is not clear that the difference matters much in practice.” Pub.
Employees for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195,
204 n.4 (D.C. Cir. 2014).
27
requested information might create a risk of circumvention of the law.” Blackwell, 646 F.3d at
42 (quoting Mayer Brown, 562 F.3d at 1194). Examination of the disputed Exemption 7(E)
redactions confirms that this material was properly withheld.
In sum, the Secret Service has adequately explained the disputed redactions under
Exemption 5 and Exemption 7(E). Accordingly, the Secret Service’s motion for summary
judgment is granted.
IV. CONCLUSION
For the foregoing reasons, the defendants’ motion for summary judgment is granted and
the plaintiffs’ cross-motion for summary judgment is denied. An appropriate Order accompanies
this Memorandum Opinion.
Date: March 19, 2018
__________________________
BERYL A. HOWELL
Chief Judge
28