Reporters Committee for Freedom of the Press v. Federal Bureau of Investigation , 236 F. Supp. 3d 268 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THE REPORTERS COMMITTEE FOR )
FREEDOM oF THE PRESS, et al., )
)
Plaintiffs, )
)
v. ) Civil Case No. 15-1392 (RJL)
)
FEDERAL BUREAU oF ) F I L E D
INVESTIGATION, er al., ) 4 ~ l
) FEB 23 2017
Defendants. )
caerk, u.s. mm t& B lam
C(BFM courts for me magnet o?'t':olumbh
MEMORAND OPINION
(February 2212017) [chs. #18, #19, #20]
The Reporters Cornmittee for Freedom of the Press (“RCFP”) and the Associated
Press (“AP”) (collectively, “plaintiffs”) are suing the Federal Bureau of Investigation
(“FBI” or “Bureau”), and the U.S. Department of Justice (“DOJ”) (collectively,
“defendants”), under the Freedom of Information Act (“FOIA”), to compel the release of
records concerning the Bureau’s alleged practice of impersonating members of the news
media Before the Court are Defendants’ Motion for Summary Judgment [Dkt. #18],
Plaintiffs’ Motion for Summary Judgment and/or Partial Summary Judgment [Dkt. #19],
and Plaintiffs’ Motion for In Camera Review and/or Other Appropriate Relief [Dkt. #20].
Upon consideration of the pleadings, relevant law, and the entire record herein, the Court
will GRANT defendants’ motion and DENY plaintiffs’ motion. The Court will also DENY
plaintiffs’ Motion for In Camera Review in light of the declarations defendants have
proffered in support of summary judgment. See lsiwele v. HHS, 85 F. Supp. 3d 337, 344
(D.D.C. 2015); Schrecker v. DOJ, 217 F. Supp. 2d 29, 35 (D.D.C. 2002), ajj”’d, 349 F.3d
657 (D.C. Cir. 2003).
BACKGROUND
Plaintiffs sent three FOIA requests to the FBI for records pertaining to the Bureau’s
alleged practice of impersonating members of the news media in criminal investigations
These requests were sparked by reports that the FBI had applied for and was granted a
search warrant authorizing it to deliver a Computer Internet Protocol Address Verifler
(“CIPAV”) to a juvenile suspected of issuing anonymous bomb threats to Timberline High
School, located near Seattle, Washington, and that the FBI executed this warrant by
creating a fake news website to deliver the CIPAV. Pls.’ Comb. Statement of Mat. Facts
and Resp. to Defs.’ Statement of Mat. Facts M 47~62 (“Pls.’ Facts”) [Dkt #19-2]; Defs.’
Resp. to Pls.’ Statement of Mat. Facts 111 47~62 [Dkt. #22-1].
l. Request No. 1313504-000
On November 6, 2014, Raphael Satter, a news correspondent for the AP, sent a letter
to the FBI requesting:
Any documents referring to the decision to create the fake AP news article
in the Timberline High School case. In particular, l seek correspondence
between the FBI’s Seattle office and FBI headquarters about the case. l also
seek a copy of the internal review carried out by the FBI and a copy of the
Web link sent by the FBI to suspect in 2007;
An accounting of the number of times, between Jan. l, 2000 and Nov. 6,
2014, that the Federal Bureau of Investigation has impersonated media
organizations or generated media-style material (including but not limited to
emails, webpages or links) to deliver malicious software to suspects or
anyone else caught up in an investigation; and
Any documents-_including training material, reviews and policy briefings-
dealing with the creation and deployment of bogus news stories or media-
style material in an investigative context.
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Defs.’ Statement of Mat. F acts 11 1 (“Defs.’ Facts”) [Dkt. #18]; Pls.’ Facts 11 1; Decl. of
David M. Hardy (“Hardy Decl.”) [Dkt. #18-1], Ex. A (AP letter) [Dkt. #18-2]. The FBI
designated the requests contained in this letter as Request Nos. 1313500-000 and 1313504-
000 (later consolidating them under No. 1313504-000), granted expedited processing, and
waived the applicable fees. Defs.’ Facts 1111 2-6; Pls.’ Facts 11 l; Hardy Decl. 1111 8»10, 15.
2. Request Nos. 1319113-000 & 1319138-000
On October 31, 2014, RCFP submitted two letters to the FBI requesting records
pursuant to FOIA. The first letter sought:
[A]ll records concerning the FBI’s guidelines and policies concerning
undercover operations or activities in which a person may act as a member
of the news media, including, but not limited to, the guidelines and policies
relating to the criminal and national security undercover operations review
committees and the Sensitive Operations Review Committee; guidelines and
policies concerning the use of investigative methods targeting or affecting
the news media, including, but not limited to, sensitive Title III applications;
and all guidelines and policies concerning sensitive investigative matters
involving the activities of the news media or relating to the status,
involvement, or impact of an investigation upon the news media.
Defs.’ Facts 11 7 ; Pls.’ F acts 11 l; Hardy Decl., Ex. K (flrst RCFP letter) [Dkt. #18-4].
The second letter sought “all records concerning the FBI’s utilization of links to
what are, or appear to be, news media articles or news media websites to install data
extraction software, remote access search and surveillance tools, or the [CIPAV].” Defs.’
Facts 11 9; Pls.’ Facts 11 l; Hardy Decl., Ex. L (second RCFP letter) [Dkt. #18-4]. The FBI
designated these letters as Request Nos. 1319113-000 and 1319138-000, respectively, and
denied expedited processing Defs.’ F acts 1111 12-13; Pls.’ Facts 1111 l, 13.
3. Litigation and Release of Records
Plaintiffs filed this action in August 2015 asserting the FBI had failed to timely
respond to their FOIA requests, failed to conduct a reasonable Search, and wrongfully
withheld non-exempt records. Compl. 1111 58-74 [Dkt. #l].l After the parties filed their
meet and confer statement as required by the local rules, the Court entered a Scheduling
Order requiring defendants to complete production of all non-exempt records, and setting
a briefing schedule for any dispositive motions. Sched. Order (Jan. 19, 2016) [Dkt. #15].
On February 26, 2016, the FBl made an initial release of responsive records, and on
March 28, 2016, made a supplemental release. Altogether, the agency processed a total of
267 pages of records responsive to plaintiffs’ FOIA requests, releasing 83 pages in full and
103 pages in part. Defs.’ Facts 11 16; Pls.’ Facts 11 16. Of the pages withheld in full or
withheld in part, 22 pages were withheld in full as duplicates. Defs.’ Facts 11 16; Pls.’ Facts
11 16. Of the remaining pages withheld in full or withheld in part, the FBI asserted FOIA
Exemptions 1, 3, 5, 6, 7(C), and 7(E). Defs.’ Facts 11 18; Pls.’ Facts 11 18. The parties were
unable to resolve their differences regarding the sufficiency of the FBI’s search and the
legal basis for its withholdings, see loint Status Rep. 2 (Mar. 11, 2016) [Dkt. #16], and
filed the cross motions for summary judgment now before the Court.
STANDARD OF REVIEW
FOIA requires federal agencies to release government records to the public upon
request, subject to nine exemptions See 5 U.S.C. § 552; Murphy v. Exec. Ojj‘ice for U.S.
‘ The complaint also challenged the FBI’s decision to deny RCFP a fee waiver. Compl. 1111 75~81.
Because the FBI has since waived the fee, Defs.’ Facts11 17; Pls.’ Facts 11 17, this issue is moot.
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Attorneys, 789 F.3d 204, 206 (D.C. Cir. 2015). “[T]he vast majority of FOIA cases can be
resolved on summary j udgment.” Brayton v. U.S. Traa'e Representatz``ve, 641 F.3d 521, 527
(D.C. Cir. 2011). When presented with a motion for summary judgment in a FOIA case,
the district court must review the record de novo to determine whether the agency has
shown (1) “the search was reasonably calculated to discover the requested documents,”
DiBacco v. U.S. Army, 795 F.3d 178, 191-92 (D.C. Cir. 2015) (quotation marks omitted);
(2) any documents withheld “are exempt from disclosure,” Murphy, 789 F.3d at 208-09
(quotation marks omitted); and (3) that “all reasonably segregable, nonexempt portions of
the requested record(s)” have been disclosed, Assassz'natz``on Archives & Research Ctr. v.
CIA, 334 F.3d 55, 58 (D.C. Cir. 2003). Summary judgment is appropriate “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 applying this rule,” courts are
mindful that “the mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact.” Byers v. CIR, 740 F.3d 668, 675 (D.C.
Cir. 2014) (quotation marks omitted). A dispute about a material fact is “genuine” where
“the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016) (quotation marks omitted).
ANALYSIS
1. Adequacy of the Search
Plaintiffs contest the adequacy of the search conducted by the FBI. “‘When a
plaintiff questions the adequacy of the search an agency made in order to satisfy its FOIA
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request, the factual question it raises is whether the Search was reasonably calculated to
discover the requested documents[.]”’ DiBacco, 795 F.3d at 191-92 (quoting SafeCara’
Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991)). It is the agency’s burden “to
show that its search efforts were reasonable and logically organized to uncover relevant
documents.” Id. at 191. An agency may meet this burden “by submitting reasonably
detailed, nonconclusory affidavits describing its efforts.” Baker & Hostetler LLP v. U.S.
Dep ’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006). Such affidavits are “accorded a
presumption of good faith,” SafeCard, 926 F.2d at 1200, and “[m]ere speculation that as
yet uncovered documents may exist does not undermine the finding that the agency
conducted a reasonable search,” Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013)
(quotation marks omitted).
In this case, the evidence shows that the FBI conducted a good faith, reasonable
search of the systems of records likely to possess records responsive to plaintiffs’ requests,
The Bureau sorted the requests into two groups. “Group l” contained FOIA Request No.
1319138-000, pertaining to the FBI’s use of HTML links designed to appear as links to
news media stories. Hardy Decl. 1111 34~35. “Group 2” contained FOIA Request Nos.
1319113-000 and 1313504-000, pertaining to the Timberline High School case. Ia’. 1111 34,
41. The agency attests that it searched the record repositories appropriate for each group
in a manner designed to uncover responsive records. Id. 1111 34-59; see also Second Decl.
of David M. Hardy 1111 2-9 (“Hardy Supp. Decl.”) [Dkt. #22-2].2 “[B]ecause the sworn
2 Plaintiffs assert in their combined opposition and reply that defendants cannot rely on the second
declaration of Mr. Hardy because it was not filed with defendants’ motion for summary judgment That
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declarations from the FBI indicate that it conducted ‘reasonably calculated’ searches, the
burden is on [plaintiffs] to identify specific additional places the agency should now
search.” Hoa’ge, 703 F.3d at 580.
Plaintiffs object to the structure of the FBI’s search, arguing that the agency’s
decision to divide their FOIA requests into two groups “resulted in the FBI conducting
unreasonably narrow and misdirected searches for responsive records.” Pls.’ Mem. of Law
in Opp. to Defs.’ Mot. for Summ. J. and in Supp. of Pls.’ Mot. for Summ. J. and/or Partial
Summ. J. 14 (“Pls. Mem.”) [Dkt. #19-1]. The FBI contends that the division was necessary
because, “due to the specificity of the FOIA requests, not all of the requests lent themselves
readily or naturally to the searches that the FBI routinely conducts in response to FOIA
requests.” Hardy Decl. 11 34. In particular, the Bureau was concerned that a search of the
agency’s Central Records System (“CRS”) would not produce materials responsive to the
Group 1 requests because the “CRS indices are not a repository for policy related matters.”
Ia’. 11 36. The agency determined that its Operational Technology Division (“OTD”) was
likely to possess the responsive documents, and directed that unit to search its records. Ia'.
1111 37-40 & n.6; see also Hardy Supp. Decl. 11 4 (explaining “OTD is solely responsible for
the deployment and collection of all lawfully conducted electronic surveillance bureau
wide”). Although plaintiffs would have structured the search differently, an agency “need
assertion is contrary to the practice of courts in this Circuit. See, e.g., Barnard v. DHS, 598 F. Supp. 2d l,
20 (D.D.C. 2009) (“Based on the present record, which includes the second declaration . . . the Court finds
that Defendant has met its burden[.]”); Schoenman v. FB], 575 F. Supp. 2d 166, 176-77 (D.D.C. 2008)
(similar). The second Hardy declaration is now part of the record, and plaintiffs have responded to its
content. The Court will consider the declaration and plaintiffs’ arguments as appropriate
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not knock down every search design advanced by every requester” in order to prevail at
summary judgment DiBacco, 795 F.3d at 191.
On a related note, plaintiffs fault the FBI for its decision not to search the CRS for
documents responsive to the Group l requests, But “[t]he FBI was not required to search
every record system; it was only required to conduct a reasonable search of those systems
of records likely to possess the requested information.” Light v. DOJ, 968 F. Supp. 2d ll,
25 (D.D.C. 2013) (citing Oglesby v. U.S. Dep ’t ofArmy, 920 F.Zd 57, 68 (D.C. Cir. 1990)).
The FBI’s search of the OTD records satisfied this standard because, as explained above,
that division was likely to possess the requested information. In any event, the agency
avers that despite its initial determination, it has now conducted a search of the CRS. That
search produced no responsive records. Hardy Supp. Decl. 11 5.
Plaintiffs also criticize the search terms used by the FBI for locating records
responsive to the Group 2 requests in the CRS and the Electronic Surveillance (“ELSUR”)
indices. According to plaintiffs, the keywords used were “deficient” because they
“relat[ed] solely to the Seattle/Timberline Incident.” Pls.’ Mem. 15~16. But the FBI
explains that these terms were necessary because CRS and ELSUR are indexed based on
specific individuals, events, and organizations, Hardy Decl. 1111 49, 55, 59, and the
Tirnberline incident was the only specific incident referenced in plaintiffs’ requests, see
ia’., Exs. A (AP letter), K (first RCFP letter), and L (second RCFP letter), As our Circuit
has made clear, a search is not rendered inadequate by the suggestion of “additional search
terms” that, in the requester’s view, the agency “should have used.” DiBacco, 795 F.3d at
191.
Plaintiffs further contend that the search was inadequate because the FBI did not, in
its response to plaintiffs, specify the cut off dates it used. According to plaintiffs, this
omission “strongly suggests” that the FBI followed the unreasonable practice of imposing
“date-of-request” cut offs. Pls.’ Mem. 16. Whatever the merits of this inference, the
Bureau has since clarified that for all searches, it used a “date-of-search” cut off. Hardy
Supp. Decl. 1111 4~6 & n.4. These cut offs were reasonable. See, e.g., Pub. Citizen v. Dep ’t
of State, 276 F.3d 634, 644 (D.C. Cir. 2002); Schoenmcm v. FBI, No. CIV.A. 04-2202CKK,
2009 WL 763065, at *18 (D.D.C. Mar. 19, 2009).
Finally, plaintiffs advance a number of arguments speculating that additional
responsive documents must exist in light of other publically available records, such as
newspaper articles, court filings, and previously released FBI documents. Plaintiffs face
an uphill climb in this regard. “In general, the adequacy of a search is determined not by
the fruits of the search, but by the appropriateness of its methods.” Hoa'ge, 703 F.3d at 579
(quotation marks and alteration omitted). Nevertheless, I have reviewed the information
identified by plaintiffs for “positive indications of overlooked materials.” Valencia~
Lucena v. U.S. Coasl Guard, 180 F.3d 321, 327 (D.C. Cir. 1999) (quotation marks
omitted). Nothing in these materials persuades me that plaintiffs’ arguments are anything
more than “[m]ere speculation that as yet uncovered documents may exist.” Hodge, 703
F.3d at 580 (quoting Safecard, 926 F.2d at 1201). Accordingly, l conclude the FBI has
carried its burden to show that its search was adequate.
2. Applicability of FOIA Exemptions
Plaintiffs also contest the applicability of FOIA Exemptions 1, 3, 5, 6, 7(C), and
7(E), asserted by the FBI as a basis for withholding certain records. “An agency
withholding responsive documents from a FOIA release bears the burden of proving the
applicability ofclaimed exemptions.” ACLUv. DOD, 628 F.3d 612, 619 (D.C. Cir. 2011).
This task “is not herculean.” Murphy, 789 F.3d at 209. An agency can meet its burden
“by submitting affidavits that describe the justifications for nondisclosure with reasonably
specific detail and demonstrate that the information withheld logically falls within the
claimed exemption.” Id. (brackets and quotation marks omitted). “Ultimately, an agency’s
justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ tor
‘plausible.”’ ACLU, 628 F.3d at 619 (quotation marks omitted).
a. Exemption 1
The FBI withheld portions of seven pages under FOIA Exemption l, 5 U.S.C.
§ 552(b)(l), which exempts from disclosure properly classified national defense or foreign
policy materials In determining whether the government’s invocation of Exemption 1 is
justified, our Circuit has “consistently deferred to executive affidavits predicting harm to
the national security.” Larson v. U.S. Dep’t. ofState, 565 F.3d 857, 865 (D.C. Cir. 2009)
(quoting Cir. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 927 (D.C. Cir. 2003)). Here, the
FBI provides a sworn affidavit from an original classification authority, David M. Hardy,
Section Chief of the Record/Information Dissemination Section of the Records
Management Division of the FBI, who reviewed all of the withheld information and affirms
that it is properly classified pursuant to Executive Order 13526. Hardy Decl. 1111 2, 67_68.
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He also affirms that the withheld material contains information pertaining to intelligence
sources and methods, and that release of this information reasonably could be expected to
cause serious damage to the national security of the United States, and therefore should be
and is classified at the “Secret” level. Id. 1111 70, 72; see also Hardy Supp. Decl. 11 ll.
Accordingly, I will defer to the FBI’s predictive judgment regarding this classified material
and will not review it in camera or order it disclosed.
b. Exemption 3
The FBI also withheld material on seven pages under FOIA Exemption 3. As
relevant here, the Exemption provides that FOIA’s disclosure obligation “does not apply
to matters that are . . . specifically exempted from disclosure by [another] statute.” 5 U.S.C.
§ 552(b)(3)(A). To apply the Exemption, the Court must ask: “Does the statute meet
Exemption 3’s requirements? And does the information that was withheld fall within that
statute’s coverage?” Labow v. DOJ, 831 F.3d 523, 527 (D.C. Cir. 2016).
Plaintiffs contend that the Bureau has not shown that the information withheld falls
within the coverage of the National Security Act of 1947. The Act, which undoubtedly
meets the requirements of Exemption 3, CIA v. Sims, 471 U.S. 159, 167~68 (1985), grants
the government “broad authority to protect all sources of intelligence information from
disclosure,” ia’. at 169. Mr. Hardy’s affidavit explains that “the FBI’s intelligence sources
and methods would be revealed if any of the withheld information is disclosed to
Plaintiffs.” Hardy Decl. 11 76. After reviewing the parties’ arguments on this matter, and
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deferring to the sworn affidavit as explained above, I am satisfied that the Bureau properly
withheld portions of the responsive records under the National Security Act of 1947.3
c. Exemption 5
The FBI also withheld material under FOIA Exemption 5, 5 U.S.C. § 552(b)(5).
“Exemption 5 incorporates the traditional privileges that the Government could assert in
civil litigation against a private litigant” including “the deliberative process privilege” and
“the government attorney-client privilege.” Baker & Hostetler, 473 F.3d at 321. The
Bureau asserts these privileges with regard to redacted portions of six pages of emails
between FBI attorneys and other personnel discussing “matters pertaining to the
application of an investigative technique,” Hardy Decl. 11 82 & n.28, and of “a report
containing information discussing legal issues regarding the Timberline School
lnvestigation,” ia’. 11 84 & n.29. Plaintiffs contest the applicability of both privileges.
According to plaintiffs, unredacted portions of these documents show that the information
withheld is not “pre-decisional” and thus that the deliberative process privilege cannot
apply. Likewise, they argue, the documents bear no indicia of confidentiality and thus the
government attorney-client privilege cannot apply.
1 conclude that both exemptions apply. The unredacted portions of the email
messages, submitted by plaintiffs, show that agency personnel were discussing changes to,
and legal review of, an application for a search warrant before submitting it to a court. See
Decl. of Katie Townsend, Ex. Q [Dkt. #19-25]. Such information is both pre-decisional
3 In light of this holding, and my holding concerning Exemption 7(E), infra, I find it unnecessary to
address the parties’ arguments concerning the applicability of Exemption 3 to information obtained
pursuant to the federal statute addressing pen registers and trap and trace devices, 18 U.S.C. §§ 3123-27.
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and privileged See, e.g., Soghoian v. DOJ, 885 F. Supp. 2d 62, 73-74 (D.D.C. 2012)
(holding FBI properly withheld “emails among attorneys discussing particular search
warrants and investigations” and “draft language regarding guidance” on same). And in
regard to the report on the Timberline investigation, the supplemental declaration provided
by the FBI clarifies that the redacted material “concerns opinions and recommendation[s]
of an advisory nature about FBI authority and policy evaluated in light of the Timberline
investigation, but not adopted by the agency as final policy.” Hardy Supp. Decl. 11 18.
Thus, this information, too, was properly withheld. See, e.g., Elec. Froniier Founa’. v. DOJ,
739 F.3d l, 8-9 (D.C. Cir. 2014) (affirming withholding of advisory material).
d. Exemption 6 and 7(C)
The FBI also withheld names and identifying information of federal and state law
enforcement and support personnel under FOIA Exemptions 6 and 7(C). “FOIA
Exemptions 6 and 7(C) seek to protect the privacy of individuals identified in certain
agency records.” ACLU v. DOJ, 655 F.3d l, 6 (D.C. Cir. 2011). Exemption 6 protects
“personnel and medical files and similar files” when disclosure “would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) protects
“records or information compiled for law enforcement purposes” when disclosure “could
reasonably be expected to constitute an unwarranted invasion of personal privacy.” Ia’.
§ 552(b)(7)(C). Both Exemptions require the Court to balance “the privacy interests that
would be compromised by disclosure against the public interest in release of the requested
information.” Light, 968 F. Supp. 2d at 28 (quotation marks omitted).
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The FBI starts from a strong position. Courts in our Circuit have repeatedly held
that law enforcement and support personnel have an “extremely strong privacy interest” in
not having their identifying information disclosed in connection with any particular
investigative matter. Brown v. FBI, 873 F. Supp. 2d 388, 404 (D.D.C. 2012); see also
Hoa’ge, 703 F.3d at 580; Lesar v. DOJ, 636 F.2d 472, 487 (D.C. Cir. 1980) (“[T]hese agents
have a legitimate interest in preserving the secrecy of matters that conceivably could
subject them to annoyance or harassment in either their official or private lives.”). The FBI
has invoked that weighty interest here, Hardy Decl. 1111 87-89, 92, and plaintiffs offer little
to counterbalance it. To be sure, plaintiffs assert that production of the records they seek
“will inform the public as to whether the FBI followed its own internal guidelines in the
Seattle case and in other cases.” Pls.’ Mem. 39. But they do not explain what, if anything,
the disclosure of information identifying individual government employees would add to
informing the public. “In the absence of a legitimate public interest, the private interest in
avoiding harassment or violence tilts the Scales.” Jua’icial Walch, lnc. v. FDA, 449 F.3d
141, 153 (D.C. Cir. 2006). The Bureau properly withheld this information.
d. Exemption 7(E)
FOIA Exemption 7(E) protects “records or information compiled for law
enforcement purposes” when production “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). “Exemption 7(E) sets a
relatively low bar for the agency to justify withholding: ‘Rather than requiring a highly
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specific burden of showing how the law will be circumvented, exemption 7(E) only
requires that the [FBI] demonstrate logically how the release of the requested information
might create a risk of circumvention of the law.”’ Blackwell v. FBI, 646 F.3d 37, 42 (D.C.
Cir. 2011) (quoting Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009)).
Under this standard, an agency “is not required to describe secret law enforcement
techniques, even generally, if the description would reveal the very information sought to
be withheld.” Light, 968 F. Supp. 2d at 29.
Here, the FBI invokes Exemption 7(E) with respect to six kinds of information: (1)
operational directives; (2) records pertaining to a specific undercover operation; (3) internal
FBI secure fax and phone numbers; (4) details concerning deployments of CIPAVs; (5)
details about certain targets of pen registers and trap and trace devices; and (6) collection
and analysis methods. In regard to each category, the FBI has credibly and thoroughly
explained how release of the information in question might create a risk of circumvention
of the law. Hardy Decl. 1111 94-103; Hardy Supp. Decl. 1111 22~27. Although plaintiffs
demand that the Bureau describe in greater detail the nature of the records it withheld, I
find that the agency has justified its withholdings because it has “logically explain[ed]”
how the information could help criminals circumvent the law. Blackwell, 646 F.3d at 42.
3. Segregation of Records
Finally, plaintiffs contest the FBI’s segregation of responsive records. Under FOIA,
“even if an agency establishes an exemption, it must nonetheless disclose all reasonably
segregable, nonexempt portions of the requested record(S).” Assassl``nation Archives, 334
F.3d at 58. “Agencies are entitled to a presumption that they complied with the obligation
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to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d
1106, 1117 (D.C. Cir. 2007). Plaintiffs argue that the FBI has inadequately explained why
it could not reasonably segregate and disclose additional material. As noted above,
excluding duplicates, the Bureau withheld 59 pages in full and 103 pages in part. The
agency affirms that it “individually examined” every page “line by line.” Hardy Decl.
11 104. Material that was withheld was either exempt from disclosure or was so intertwined
with protected material that segregation Was not possible without foreseeable harm. See
id. 11 105; Hardy Supp. Decl, Ex. A (Vaughn index) [Dkt. #22-3]. Upon review of the FBI’s
declarations and Vaughn index, I conclude that the Bureau has fulfilled its duty to be “as
specific as possible without actually disclosing information that deserves protection.”
Assassination Archives, 334 F.3d at 58 n.3 (quotation marks omitted).
CONCLUSION
For the foregoing reasons, the Court will GRANT Defendants’ Motion for Summary
Judgment, will DENY Plaintiffs’ Motion for Summary Judgment and/or Partial Summary
Judgment, and will DENY Plaintiffs’ Motion for In Camera Review and/or Other
Appropriate Relief. An Order consistent with this decision accompanies this
Memorandum Opinion.
/
RICHARD .LEO
United State ist ``ct Judge
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