Shapiro v. United States Department of Justice , 239 F. Supp. 3d 100 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RYAN NOAH SHAPIRO, et al.
Plaintiffs,
v.
Civil Action No. 13-555 (RDM)
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant.
MEMORANDUM OPINION AND ORDER
This is the fourth in a series of opinions addressing the extent to which the Freedom of
Information Act (“FOIA”) requires the Federal Bureau of Investigations (“FBI”) to disclose
records relating to the FBI’s review and response to prior FOIA requests. Plaintiffs are nonprofit
organizations, advocates, and journalists who filed several FOIA requests seeking processing
documents associated with almost a hundred FOIA requests that they or others had previously
submitted to the FBI. In an earlier opinion, the Court rejected two categorical non-disclosure
policies adopted by the FBI; resolved the parties’ disputes regarding several case-specific
withholdings; concluded that a handful of the exemptions invoked by the FBI were not
adequately supported by the existing record; and granted both parties leave to renew their
respective cross-motions for summary judgment as to those exemptions. See Shapiro v. United
States Dep’t of Justice, 153 F. Supp. 3d 253 (D.D.C. 2016) (“Shapiro I”).
Of the many issues raised in this litigation, the FBI is particularly—and understandably—
concerned about its policy of withholding “search slips” and “processing notes” generated in
response to prior FOIA requests. As the FBI explains, disclosure of these records “might allow a
savvy FOIA requester to identify the rare” occasions when “the FBI has exercised its discretion
to issue a [‘No Records’] response to a FOIA request for records that are ‘excludable’ under
FOIA, and thus would risk the implicit disclosure of highly sensitive information relating to
ongoing investigations, confidential informants, and classified national security matters.” Id. at
256–57. As originally formulated, the relevant FBI policy required the withholding of all FOIA
processing records generated within the last twenty-five years in responding to FOIA requests
for investigative files or records. See Dkt. 31-1 at 9 (Second Hardy Decl. ¶ 20). Although the
Court has rejected that sweeping policy as inconsistent with FOIA, Shapiro I, 153 F. Supp. 3d at
270–76, the FBI’s conundrum regarding how to protect information relating to its “No Records”
responses while complying with FOIA remains at the core of this case.
In its current motion and opposition to Plaintiffs’ cross-motion, the FBI asserts a
“targeted” theory of non-disclosure of its “No Records” responses, which it contends is “tailored
to the specific and unique facts of this case,” Dkt. 57-3 at 56 (Fifth Hardy Decl. ¶ 116), and it
defends its withholding of other records and information based on an array of FOIA exemptions.
Plaintiffs, in turn, do not challenge many of the FBI’s withholdings,1 but they do challenge the
1
As the D.C. Circuit has explained, “a motion for summary judgment cannot be ‘conceded’ for
want of opposition.” Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016).
This does not mean, however, that the Court must assess the legal sufficiency of each and every
exemption invoked by the government in a FOIA case, regardless of whether the requester
contests the government’s invocation of that exemption. In many FOIA cases, like this one, the
dispute between the parties is not fully defined until the government has provided the FOIA
requester with a Vaughn index or its equivalent and the FOIA requester has had the opportunity
to decide which, if any, of the asserted exemptions he or she wants to challenge in the litigation.
Where the FOIA requester responds to the government’s motion for summary judgment without
taking issue with the government’s decision to withhold or to redact specific documents, the
Court can reasonably infer that the FOIA requester does not seek those specific records or
information and that, as to those records or information, there is no case or controversy sufficient
to sustain the Court’s jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
To the extent the FOIA requester does not seek to compel the release of the withheld
2
FBI’s continued withholding of (1) search slips and processing notes relating to those “parent
[FOIA] request[s] [that] resulted in . . . ‘No Records’ response[s],” Dkt. 57-3 at 56 (Fifth Hardy
Decl. ¶ 117); (2) certain case file and sub-file numbers, see Dkt. 68 at 8–15; (3) search slips and
processing notes relating to the murder of Hyram Kitchen, see id. at 15–17; (4) information that
Plaintiffs contend is not properly treated as classified or subject to the National Security Act, 50
U.S.C. § 3024(i)(1), see Dkt. 67 at 16–18; (5) certain information purportedly subject to the
attorney-work-product and deliberative-process privileges, see id. at 18–19; and (6) segregable
portions of search slips and processing notes that the FBI claims reflect protected personal
information but that have been discussed in publicly available declarations, Dkt. 67 at 19–20. In
addition, the FBI seeks leave to submit an ex parte, in camera declaration in support of its
motion for summary judgment and its opposition to Plaintiffs’ cross-motion for summary
judgment. Dkt. 75. Plaintiffs both oppose that motion, Dkt. 79, and move to strike the ex parte,
in camera declaration or to make portions of it public, Dkt. 81.2
information, moreover, the Court need not—and should not—enter summary judgment in favor
of the government. Rather, unlike in Winston & Strawn and similar cases, there is simply no
dispute to resolve.
2
The parties have spilled considerable ink on the additional question whether Plaintiffs are
entitled to receive one CD containing one hundred pages of records or one CD containing 500
pages of records free of charge. In Shapiro I, the Court held that this dispute was mooted by the
FBI’s agreement to process the records at issue free of charge. 153 F. Supp. 3d at 292.
Subsequently, however, plaintiff Stein moved to modify that holding on the ground that the “FBI
released a single CD containing 107 out of 572 pages to Stein.” Dkt. 54 at 2. The FBI, then,
briefed the issue on the merits, arguing that Stein received 107 pages, which—according to the
FBI—was in excess of the 100 free pages to which he was entitled. Dkt. 57-1 at 35–37.
Remarkably, Plaintiffs’ responsive brief reports that they have now “discovered [that], despite
FBI’s counsel’s protestations and claims that it had only produced 107 pages because of the fee
issue, [the FBI] actually accounted for all 572 pages.” Dkt. 67 at 20 n.15. The Court will,
accordingly, deny plaintiff Stein’s motion to modify as moot.
3
As explained below, the Court will grant the FBI’s motion for leave to file an ex parte, in
camera declaration and deny Plaintiffs’ motion to strike or make public portions of the FBI’s in
camera declarations; will grant in part and deny in part the FBI’s renewed motion for summary
judgment; and will grant Plaintiffs’ cross-motion for summary judgment with respect to the
application of Exemption 7(A) to records relating to the murder of Dr. Hyram Kitchen, and will
otherwise deny that motion. The Court will allow further briefing on the remaining issues in the
case.
I. BACKGROUND
Much of the administrative and procedural history of this case is set forth in Shapiro I,
153 F. Supp. 3d at 257–68, and the Court will not repeat that background here. The more recent
procedural history, however, requires some explication.
A. Shapiro I
In Shapiro I, the Court first rejected two categorical policies adopted by the FBI—a
policy of withholding all search slips and processing notes generated in the past twenty-five
years in responding to “parent” FOIA requests for investigative files or records, id. at 276, and a
policy of withholding all “case evaluation forms” used to track and evaluate the performance of
FBI FOIA analysts in processing FOIA and Privacy Act requests, id. at 282. The Court also
evaluated the adequacy of the FBI’s search for certain records and evaluated a number of case-
specific withholdings. Based on that request-by-request review, the Court required the release of
certain records, sustained the FBI’s withholding of others, and concluded that it needed
additional information or argument to evaluate yet other withholdings.
Three case-specific withholdings, in particular, required further factual and legal
development. As to the first, Plaintiffs sought records created by the FBI when it processed
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twelve FOIA requests submitted by other FOIA requesters. Shapiro I, 153 F. Supp. 3d at 284.
The FBI released certain records, but declined to release others on the ground that those records
contained information about private parties (other than the Plaintiffs) and were thus exempt from
disclosure under Exemption 7(C). Id. at 284–85; see also id. at 286 n.11 (addressing Exemption
6). Plaintiffs did not dispute the premise of this argument, but they argued that the FBI had
already placed the relevant information in the public domain, and thereby waived the relevant
exemptions. Id. at 285. The Court agreed with the FBI that at least some of information sought
was protected by Exemption 7(C) but noted that neither party had addressed the issue of
segregability. Id. at 286–87. The Court, accordingly, granted the FBI leave to file a renewed
motion for summary judgment addressing segregability. Id. at 287.
The second and third case-specific withholdings requiring further development both
involved application of FOIA Exemption 5, which permits an agency to withhold records 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). As to one set of records, the FBI asserted the attorney-work-product
privilege, arguing that the requested records were prepared in connection with another FOIA
lawsuit, namely McGehee v. U.S. Dep’t of Justice, 800 F. Supp.2d 220 (D.D.C. 2011). Shapiro
I, 154 F. Supp. 3d at 289. In response, Plaintiffs maintained that the records at issue were
“substantially similar” to the search slips that the FBI would have prepared in the absence of the
McGehee litigation. Id. at 290. The Court concluded that the dispute between the parties
“expose[d] vacuums both in the record and in the governing precedent,” id., and granted the FBI
leave “to file an additional evidentiary submission regarding the nature of the withheld
documents,” id. at 291. With respect to the second set of records, the FBI asserted the
deliberative-process privilege, arguing that processing notes prepared by FBI analysts in
5
responding to a FOIA request for records about Hesham Abu Zubaydah, the brother of a
Guantanamo detainee, were deliberative materials prepared in the course of responding to the
FOIA request. Id. at 292–93. Noting that the FBI had withdrawn its contention that all
processing notes are protected by the deliberative process privilege, the Court concluded that the
FBI had failed to offer any non-conclusory factual support for its contention that the Zubaydah
notes—in particular—were protected. The Court, accordingly, granted the FBI leave to file a
renewed motion for summary judgment along with a supplemental factual submission further
addressing that issue. Id. at 293.
B. Shapiro II
After issuing its decision in Shapiro I, the Court convened a status conference to address
next steps in the litigation. At the status conference, the Court directed that the parties meet and
confer and submit a joint report to the Court proposing a schedule (1) for the production of the
records that the Court had, to date, ordered the FBI to release and (2) for further briefing and
evidentiary submissions on the handful of questions left unresolved in Shapiro I. The parties
were unable to reach agreement, but set forth their respective positions in their joint report. See
Dkt. 51.
The FBI, for its part, argued that—in light of the Court’s conclusion that its categorical
“No Records” policy was inconsistent with FOIA—it should be permitted to assert an array of
additional FOIA exemptions not presented in its original motion or in opposition to Plaintiffs’
cross-motion. Dkt. 51 at 2–3; see also Dkt 21-3 at 25 (First Hardy Decl. ¶ 75 n.20) (asserting
that “[i]nformation in the documents responsive to [P]laintiffs’ requests may also be exempt
pursuant to Exemptions 1, 3, 5, 6, 7(A), 7(C), 7(D) and/or 7(F)”). The FBI asserted, moreover,
that this was “a prudent opportunity to inform the Court that” it had, in fact, abandoned its
6
twenty-five-year categorical “No Records” policy almost ten months earlier—before the Court
had issued its decision on the legality of that policy and, indeed, before oral argument on the
parties’ cross-motions for summary judgment.3 Dkt. 51-1 at 2–3 (Fourth Hardy Decl. ¶ 5).
Under its new policy, the FBI explained, it only withholds responses seeking FOIA processing
records where the “parent” FOIA request resulted in either a “No Records” or Glomar
response—that is, where either no records were found or the FBI neither admitted nor denied that
any records were found. The FBI, accordingly, sought leave “to submit further briefing [to]
address[] its new targeted treatment” of “No Records” responses. Dkt. 51 at 3.
Plaintiffs disagreed. In their view, the FBI had a full and fair opportunity to raise any and
all applicable FOIA exemptions. It did not “reserve” the opportunity to raise additional
exemptions should its categorical defenses fail, and, indeed, it “was cognizant enough about the
nature of the proceedings to have invoked Exemption 6 with respect to the names of third parties
in search records.” Id. at 6. As Plaintiffs argued, permitting an agency “to play cat and mouse”
by raising new FOIA defenses each time it fails to persuade the Court on the merits of its
previously asserted defense risks interposing the type of delay that FOIA was designed to avoid.
Id. (citation omitted). Plaintiffs, accordingly, urged the Court to limit further briefing and
evidentiary submissions to the specific issues left open in Shapiro I.
3
At oral argument, the Court asked counsel for the FBI: “Do you know, has the FBI given
thought to whether there are narrower ways to address” the “No Records” issue?” Dkt. 52 at 30.
That is, had the FBI “given thought to ways of addressing the concern that it has raised that don’t
so categorically foreclose people from obtaining information that itself is not problematic?” Id.
at 31. Counsel for the FBI responded: “The answer is I don’t know whether something else has
been contemplated.” Id. He then added, “agency counsel is here,” but “I don’t know that we can
necessarily tell you, your Honor, if other options have been considered.” Id. at 32. Although the
Court agreed that counsel need not disclose internal deliberations, it appears that the revised
policy was not merely a subject of deliberations at that time but had, in fact, been adopted, Dkt.
51-1 at 2–3 (Fourth Hardy Decl. ¶ 5).
7
In considering the parties’ respective positions, the Court applied the standard set forth by
the D.C. Circuit in Maydak v. U.S. Department of Justice, 218 F.3d 760 (D.C. Cir. 2000), a case
that dealt with the related question whether the Court of Appeals should grant an agency’s
motion to remand a FOIA case in order to permit the agency to assert a new FOIA exemption
“based on changed circumstances.” 218 F.3d at 764. Under Maydak, the D.C. Circuit will
permit a remand for the purposes of asserting a new FOIA exemption (1) based on “a substantial
change” in the facts or “an interim development in the applicable law,” or (2) “where, from pure
human error, the government failed to invoke the correct exemption and will have to release
information compromising national security or sensitive, personal, private information unless the
court allows it to make an untimely exemption claim.” Id. at 767. In the Court’s view, neither
Maydak exception was applicable. As to the first, the FBI did not contend that any change in law
or fact justified the post-summary judgment assertion of new defenses; indeed, the FBI changed
its policy months before the Court issued its decision. And, as to the second, the Court
concluded that the FBI’s failure to bring its change in policy to the Court’s attention was
more than “a simple mistake.” Shapiro v. U.S. Dep’t of Justice, 177 F. Supp. 3d 467, 471
(D.D.C. 2016) (“Shapiro II”).
In light of the significant security and privacy issues raised in this case, however, the
Court did not strictly apply the Maydak standard and agreed that the FBI could submit further
“briefing on whether specific records sought by the plaintiffs should be withheld under a FOIA
exemption or exclusion because their disclosure would ‘compromis[e] national security or
sensitive, personal, private information.’” Id. at 471 (citation omitted). But the Court made
clear that this additional bite at the apple was a limited one and did not open the door for the FBI
to litigate, more generally, the merits of its new categorical “No Records” policy. Id. at 473.
8
The Court also rejected the FBI’s contention that it had somehow “reserved” the right to raise a
series of new document-by-document exemptions. Id. at 472. The Court, nonetheless, permitted
the FBI to raise new defenses to the extent necessary to protect “‘national security or sensitive,
personal, private information.’” Id. at 472–73 (citation omitted).
C. Shapiro III
The FBI moved for reconsideration, arguing that Maydak does not apply to cases still
pending in the district court but, rather, applies only to cases pending on appeal. Dkt. 55. The
Court agreed that neither Maydak nor any other D.C. Circuit precedent directly addresses when a
district court should consider late-asserted defenses in a FOIA action. Shapiro v. U.S. Dep’t of
Justice, 13-cv-555, 2016 WL 3023980, at *3 (D.D.C. May 25, 2016) (“Shapiro III”). Rather, the
case law recognizes that the district courts retain substantial discretion to determine whether an
untimely FOIA defense has been forfeited. Id. As the Court further explained, however, that
discretion must be guided by the Court’s balancing of “principles of fairness, efficiency, and
finality,” along with due respect for “FOIA’s ‘statutory goals [of] efficient, prompt, and full
disclosure of information.’” Id. at *4 (quoting August v. FBI, 328 F.3d 697, 699 (D.C. Cir.
2003)).
The parties agreed that, in light of the Court’s holding in Shapiro II, the FBI would be
allowed to assert new defenses based on FOIA Exemptions 1, 3, 6, 7(C), and 7(D), and the FBI
agreed, in light of Shapiro II, to “specifically tailor[ ]” its “No Records” defense to “the unique
facts and circumstances of this case.” Id. Over Plaintiffs’ objection, moreover, the Court
permitted the FBI to raise new defenses under FOIA Exemptions 7(A) and 7(E) and to assert the
attorney-client and attorney-work-product privileges under FOIA Exemption 5. Id. at *5. With
respect to the FBI’s request that it be allowed to argue that all substantive material contained in
9
search slips and processing notes is protected by the deliberative-process privilege, however, the
Court concluded that the equities tipped in favor of Plaintiffs. Id. As the Court explained, the
FBI had not simply neglected to make this argument prior to the Court’s summary judgment
decision, but had explicitly waived the same—or substantially the same—argument in its reply
brief in Shapiro I. Id. at *6. And, finally, the Court held that, even if the FBI did not intend to
assert the deliberative-process privilege with respect to all of the search materials, opening the
door to this late-asserted defense posed “a substantial risk of expanding the scope and duration of
the present litigation,” without good cause and to the unfair detriment of Plaintiffs. Id. at *7.
Taken together, the Court’s decisions in Shapiro II and Shapiro III foreclosed the FBI
from raising defenses based on its new, categorical “No Records” policy or on previously
unasserted (or waived) claims that the search slips or processing notes are protected by the
deliberative-process privilege. But the Court permitted the FBI to assert a “targeted” version of
its “No Records” defense, to assert FOIA Exemptions 1, 3, 6, 7(A), 7(C), 7(D), and 7(E), and to
assert the attorney-client and attorney-work-product privileges under Exemption 5. Id. at *9. In
light of these decisions, the parties have now filed a second set of cross-motions for summary
judgment, along with a number of related motions.
II. ANALYSIS
A. Motion For Leave To File Ex Parte, In Camera Declaration
As an initial matter, the FBI moves for leave to submit a further declaration of David M.
Hardy—his eighth so far in this case—in camera and ex parte in support of its renewed motion
for summary judgment. Dkt. 75. Plaintiffs oppose that motion and have also cross-moved to
strike or to make public portions of the declaration. Dkt. 81. They also seek to unseal portions
of Hardy’s third and sixth declarations. Id. Plaintiffs contend that Hardy’s eighth declaration is
10
“highly likely” to “include[] inadmissible legal argument,” based on what they view as “blatant
legal conclusions” in Hardy’s previous declarations. Id. at 3.
Although FOIA expressly contemplates in camera review of records “to determine
whether” they may be withheld in whole or in part, 5 U.S.C. § 552(a)(4)(B), “the use of in
camera affidavits has generally been disfavored” in the D.C. Circuit, Armstrong v. Exec. Office
of the President, 97 F.3d 575, 580 (D.C. Cir. 1996). This is because in camera filings are at odds
with the “strong presumption in favor of public access to judicial proceedings,” Johnson v.
Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991), and because ex parte
proceedings deprive the Court of the “benefit of criticism and illumination” that comes with the
arguments of opposing counsel, Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976). To be
sure, in camera, ex parte filings are at times necessary to permit the Court to perform its role of
ensuring that the agency has appropriately invoked a FOIA exemption without requiring the
agency publicly to disclose the very records or information it seeks to protect. See, e.g., Barnard
v. Dep’t of Homeland Sec., 598 F. Supp. 2d 1, 16 (D.D.C. 2009). But before accepting such a
filing, the Court “must both make its reasons for doing so clear and make as much as possible of
the in camera submission available to the opposing party,” Armstrong, 97 F.3d at 580, and to the
public, see Mobley v. U.S. Dep’t of Justice, 870 F. Supp.2d 61, 68–69 (D.D.C. 2012).
The Court has reviewed the proposed eighth Hardy declaration, and concludes that it
contains sensitive information not appropriate for disclosure and which is necessary for the Court
to make a decision on the agency’s renewed motion for summary judgment, and that it does not
contain impermissible legal argument. Accordingly, the Court concludes that it is appropriate to
permit the government to file the declaration ex parte and in camera. See Light v. Dep’t of
Justice, 968 F. Supp. 2d 11, 29–30 (D.D.C. 2013). Plaintiffs also move to make public portions
11
of Hardy’s third and sixth declarations, which were submitted in camera and in redacted public
versions. See Dkt. 31-1 at 14–18 (Third Hardy Decl.); Dkt. 90-1 (Sixth Hardy Decl.). The Court
has reviewed the redacted portions of those declarations, and concludes that they contain
sensitive material that cannot be made public without thereby disclosing the very information
that the agency withheld in the underlying FOIA requests.
Accordingly, the Court will GRANT the government’s motion to file the eighth Hardy
declaration in camera and ex parte, and will DENY Plaintiffs’ cross-motion to strike or make
public portions of the third, sixth, and eighth Hardy declarations.
B. “No Records” Responses
The challenge that the FBI faces in responding to FOIA requests seeking FOIA
processing records relating to “No Records” responses remains at the core of this case. As
explained in Shapiro I, 153 F. Supp. 3d at 258, FOIA permits the FBI to treat certain particularly
sensitive “records as not subject to the requirements of” FOIA, 5 U.S.C. § 552(c), and thus
permits it to issue a “No Records” or “None Found” response to a request for any such records,
see ACLU of Mich. v. FBI, 734 F.3d 460, 469–72 (6th Cir. 2013). This technique proves useful
because the explicit assertion of a FOIA exemption might permit a FOIA requester or other
member of the public to infer the precise information that the FOIA exclusion is intended to
secure. To take one hypothetical, a FOIA exclusion permits a criminal law enforcement agency,
like the FBI, to maintain the secrecy of the name or identity of a confidential informant. See 5
U.S.C. § 552(c)(2). Imagine, then, that a FOIA requester sought to confirm rumors that John
Adams was a confidential informant, and thus submitted a FOIA request seeking all FBI
investigative records including any reference to John Adams. If the FBI were to respond that it
had responsive records that were subject to a FOIA exemption—such as Exemption 7(A) or
12
7(C)—John Adams’ safety and the FBI’s investigation might be put in jeopardy. But, because
the FBI is allowed to treat records that are subject to exclusion as though they did not exist for
purposes of FOIA, little can be inferred from a “No Records” response. The FBI would simply
respond that it did not locate any records responsive to the FOIA request.
Plaintiffs’ practice of filing FOIA requests for records generated in responding to prior
FOIA requests, however, puts this practice to the test. Because the FBI inevitably generates
records, such as search slips and processing notes, when it receives any FOIA request, the FBI
faces a conundrum. It cannot, as the Court previously explained, simply “deny that the search
slip exits . . . because search slips are created as a matter of course.” Shapiro I, 153 F. Supp. 3d
at 270. It cannot release the search slip, which even in redacted form would likely reveal “the
existence of the file that the FBI told the requester did not exist.” Id. And it cannot withhold
“the entire search slip under one of the exemptions, because the withholding itself would ‘tip off’
the requester that the search slip must refer to a file that he or she had previously been told did
not exist.” Id.
In its original motion for summary judgment and opposition to Plaintiffs’ cross-motion,
the FBI relied on a sweeping policy to address this problem: As the Section Chief of the FBI’s
Records/Information Dissemination Section (“RIDS”) explained, “the FBI has determined that
the only way for it to protect information that is excludable is to deny access to [all] processing
records relating to FOIA/Privacy Act requests related to criminal investigative, national security,
counterintelligence, or foreign intelligence information pursuant to Exemption 7(E)” for a period
of twenty-five years. Dkt. 21-3 at 25 (First Hardy Decl. ¶ 75); see also Dkt. 31-1 at 9 (Second
Hardy Decl. ¶ 20). The Court concluded in Shapiro I that this categorical policy was
13
unsustainable under Exemption 7(E). Shapiro I, 153 F. Supp. 3d at 270–76. The Court, in
particular, identified three hurdles that the FBI failed to clear:
First, Exemption 7(E) applies only to “records or information compiled for law
enforcement purposes.” 5 U.S.C. § 552(b)(7). Although search slips and processing notes
might, at times, replicate “records or information compiled for law enforcement purposes,” the
FBI had failed to show—or even to argue—that “all of the withheld search slips in their entirety”
replicate such records or information. 153 F. Supp. 3d at 272. Second, Exemption 7(E) applies
only where the release of the records at issue “would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions” that would “risk circumvention of the law.” 5 U.S.C.
§ 552(b)(7)(E). The FBI, however, failed to explain how disclosure of the search slips would
reveal a law enforcement technique, procedure or guideline; rather, it merely asserted that “the
FBI’s use of informants is a law enforcement technique” and that other information contained
“on search slips would reveal law enforcement techniques and procedures.” Dkt. 31 at 21–22;
see also Dkt, 31-1 at 10 (Second Hardy Decl. ¶ 22). Third, the Court recognized that discrete
pieces of seemingly innocuous information might be subject to protection on a “mosaic” theory,
but held that the FBI did not, and could not, defend its categorical “No Records” policy on such a
theory.4 153 F. Supp. 3d at 274–75. In short, the FBI’s categorical policy did not seek to
protect individual mosaic tiles, which when placed together could reveal protected information,
4
The government’s only mention of the “mosaic” theory in its briefing on its initial motion for
summary judgment was the argument that search slips relating to criminal investigations or
national security information “are compilations of myriad types of information about criminal
and/or national security investigations that reveal the size, nature, location(s), sensitivity,
classification, and status of FBI investigations” and that “release of such compilations related to
multiple subjects could establish a mosaic that would allow individuals to alter their behaviors
and/or adopt countermeasures to conceal behaviors or avoid detection.” Dkt. 21-1 at 22.
14
but rather sought to “amass a haystack in which to hide” the small handful of protected search
slips. Id. at 275.
In its present motion and opposition brief, the FBI offers both a different policy and a
different—or, at least refined—theory. Rather than asserting a blanket policy applicable to all
search slips and FOIA processing notes generated in response to requests for investigative
records or files over the past twenty-five years, the FBI asserts a case-specific exemption
applicable to only the forty-two “No Records” responses to the fifty-eight “parent” FOIA
requests submitted by Ryan Shapiro. Dkt. 57-3 at 59 (Fifth Hardy Decl. ¶ 121). As to these
materials, the FBI asserts that “within the holistic context of Shapiro’s universe of inter-related
domestic terrorism requests,” release of FOIA processing records relating to the forty-two “No
Records” responses risks disclosure of confidential techniques and procedures used by the FBI to
hide or obscure its use of the FOIA exclusion, 5 U.S.C. § 552(c). Id. at 55–63 (Fifth Hardy Decl.
¶¶ 114-129). The FBI posits that—at least in the current context, which involves an array of
FOIA requests relating to domestic terrorism investigations—the implicit disclosure of the
existence or the nonexistence of the use of the FOIA exclusion poses a risk of circumvention of
the law. Either way, according to the FBI, disclosure of the redacted portions of the search slips
and processing notes risks “reveal[ing] the scope of the FBI’s [domestic terrorism] program in
the United States, the scope and focus of its investigative efforts, and strategies it plans to pursue
in preventing and disrupting domestic terrorist activity.” Id. at 62 (Fifth Hardy Decl. ¶ 128).
Disclosure would, as a result, “allow animal extremist terrorists to gauge the FBI’s strengths and
weaknesses within certain areas of the [domestic terrorism] arena and [to] structure their
activities in a manner that avoids detection and disruption by the FBI.” Id.
15
The Court concludes that the FBI’s case-specific assertion of Exemption 7(E) now clears
the hurdles described in Shapiro I. The first of those hurdles requires that the “records or
information” at issue have been “compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7).
In Shapiro I, the Court rejected the FBI’s efforts to protect all search slips from disclosure,
holding that “[i]n the absence of a showing that all of the withheld search slips . . . constitute
records ‘compiled for law enforcement purposes,’ the FBI’s categorical reliance on Exemption 7
fails at the threshold.” Shapiro I, 153 F. Supp. 3d at 272. That is not the case, however, with
respect to the FBI’s narrowed assertion of Exemption 7(E), which applies only to those search
records that correspond to forty-two “No Records” responses the FBI provided to Shapiro. To be
sure, those search records were not themselves compiled for law enforcement purposes; rather,
they were compiled to comply with FOIA. But to the extent they replicate information that was
compiled for law enforcement purposes, that distinction is immaterial. See FBI v. Abramson,
456 U.S. 615, 624 (1982) (Exemption 7 applies to records that “contain[] or essentially
reproduce[] all or part of a record that was previously compiled for law enforcement reasons”).
Nor does it make a difference whether any underlying records exists or not. Exemption 7
protects “information compiled for law enforcement purposes,” 5 U.S.C. § 552(b)(7) (emphasis
added), and the absence of a record can reflect “information” compiled by the agency just as
much as the existence of a record. To continue the hypothetical started above, a search slip
showing that the FBI relied on the § 552(c) exclusion in responding to a request for records
containing the name John Adams might support an inference that Adams was a confidential
informant, while a search slip showing that, in fact, no records were found might support a
contrary inference. Either way, however, release of the search slip would risk disclosing
16
information compiled for law enforcement purposes—i.e., the FBI’s list of informants in the
Continental Congress.
Reliance on Exemption 7(E) also requires that release of the records or information at
issue “would disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions,”
and would thereby “risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). As the Court has
previously explained, the fact that the FBI is permitted to issue “No Records” responses based on
the § 552(c) exclusion is not a confidential “technique” or “procedure”—rather, that fact is
embodied in the statute and judicial precedent. Shapiro I, 153 F. Supp. 3d at 273. Although the
FBI has now further elaborated on its arguments, it is safe to say that it still has not identified a
relevant law enforcement “technique” or “procedure” with crystal clarity. It appears, however,
to make two arguments. First, it contends that “the use of § 552(c) as a subterfuge to prevent
disclosure of the existence or non-existence of sensitive law enforcement records” constitutes a
“law enforcement technique” every bit as much as, for example, use of “intentional
misinformation from an undercover agent or informant.” Dkt. 57-3 at 56, 58 (Fifth Hardy Decl.
¶¶ 116, 119). Although the existence of “the § 552(c) technique . . . is publicly known, its use in
connection with any particular FBI ‘No Records’ response is not.” Id. at 58 (Fifth Hardy Decl. ¶
120). And, second, it argues that “the FBI’s assembling and vetting of . . . investigative
information to understand the inter-relation[ship] of varied [domestic terrorism] investigations,
targets, and priories—resulting in ‘No Records’ responses to Shapiro’s requests—is itself a
protective mechanism, technique, or [procedure] necessary to safeguard the FBI’s national
[domestic terrorism] investigative program.” Id. at 61 (Fifth Hardy Decl. ¶ 126).
17
The Court in convinced that information contained in the limited universe of search slips
now at issue risks disclosing a “technique” or “procedure” that could aid in the “circumvention
of the law.” 5 U.S.C. § 552(b)(7)(E). As explained above, there is little meaningful difference
between records compiled for law enforcement purposes and information relating to the search
of those records. In both cases, knowledge of the existence or non-existence of an investigation,
for example, might assist those seeking to evade detection. And, more importantly for present
purposes, the existence or non-existence of such an investigation would likely reflect important
information about the “scope of the FBI’s [domestic terrorism] program in the United States, the
scope and focus of its investigative efforts, and strategies it plans to pursue in preventing and
disrupting domestic terrorist activity.” Dkt. 57-3 at 62 (Fifth Hardy Decl. ¶ 128).
The FBI does not argue that disclosure of any single unredacted search slips, or even
disclosure of all of the search slips at issue, would—standing alone—disclose protected law
enforcement techniques or procedures. It does contends, however, that the information that it
has withheld under Exemption 7(E) forms part of a mosaic that, when viewed as a whole, would
reveal confidential law enforcement techniques and procedures and would risk circumvention of
the law. Dkt. 57-1 at 29. This “mosaic” theory finds support in both Supreme Court and D.C.
Circuit precedent recognizing that “bits and pieces of data ‘may aid in piecing together bits of
other information even when the individual piece is not of obvious importance in itself.’” CIA v.
Sims, 471 U.S. 159, 178 (1985) (quoting Halperin v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980)).
As a result, in cases implicating national security, courts have permitted the government to rely
on the mosaic theory to justify withholding agency records that form only a small piece of a
larger puzzle. See, e.g., Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 928–29
18
(D.C. Cir. 2003). The courts have provided little guidance to date, however, about how the
mosaic theory applies in particular contexts.
At one level, there is little or no limit to the scope of the mosaic theory—almost anything
a law enforcement agency does could form at least a miniscule piece of a massive mosaic that
might reveal confidential information. In Shapiro I, the Court faced a variant of this scenario.
There, the FBI argued that every search slip and processing note generated in response to a FOIA
request for investigative records over the past twenty-five years was subject to protection
because “the only way for [the FBI] to protect information that is excludable is to deny access
to” all FOIA processing records generated in responding to “parent” FOIA requests for
investigative records or files. Dkt. 21-3 at 25 (First Hardy Decl. ¶ 75). As the Court explained
in Shapiro I, that claim of protection was far too broad—rather than seeking to protect “bits and
pieces of data” that, when pieced together, formed a mosaic, the FBI simply sought “to amass a
haystack in which to hide” the rare use of § 552(c). 153 F. Supp. 3d at 275; see also id. at 272
(noting that “[i]n the most recent fiscal year, the Justice Department invoked an exclusion 145
times—or in 0.23% of the over 60,000 requests that it processed”). If the mosaic theory were
applicable in that context, it would be difficult to discern what, if any, limits might apply.
As reframed in the FBI’s renewed motion for summary judgment, however, the mosaic
theory admits of reasonable limits and is well supported by the FBI’s declarations and the record.
As noted above, the FBI has limited its assertion of Exemption 7(E) to search processing records
relating to the forty-two “parent” FOIA requests as to which the FBI provided Shapiro with “No
Records” responses. Dkt. 57-3 at 59 (Fifth Hardy Decl. ¶ 121). And, importantly, the FBI has
explained how these requests fit “within the holistic context of Shapiro’s universe of inter-related
domestic terrorism requests.” Id. (Fifth Hardy Decl. ¶ 122). Among other things, eleven of the
19
“parent” requests are subject to ongoing litigation in a case in which Shapiro has sought to
compel further responses to eighty-one requests relating to domestic terrorism. Id. Those
requests, in turn, “refer to ‘64 inter-related individuals, organizations, incidents, and/or
publications related to animal rights extremism,’” and, because the “requests all relate to one of
the FBI’s domestic terrorism priorities, . . . the hundreds of thousands of pages of records
requested by [Shapiro] . . . must [themselves] be reviewed for any possible ‘mosaic effect’”
before they can be released. Shapiro v. U.S. Dep’t of Justice, Civ. No. 12-313 (BAH), Dkt. 61 at
1–2. On top of this, Shapiro has also filed an additional 260 FOIA requests related to animal
rights extremism. Dkt. 57-3 at 60 (Fifth Hardy Decl. ¶ 124). As explained by a senior official in
the FBI’s Counterterrorism Division, the release of at least some of the information sought by
Shapiro in his “parent” FOIA requests would have “significant deleterious effects . . . on the
FBI’s on-going efforts to investigate and combat domestic terrorism in the United States.” Dkt.
57-4 at 5. As the FBI points out, however, the mosaic concern does not turn on the fact that
Shapiro is the requester in this case; his extensive history of FOIA requests happens to have
created the background of public information against which the risk of disclosing the information
at issue here must be assessed, but that analysis would be the same regardless of who requested
the records. Dkt. 74 at 24.
In short, the search slips at issue are part of a complex mosaic relating to on-going FBI
operations, involving one of the FBI’s domestic terrorism priorities, which has been the subject
of a staggering number of FOIA requests seeking information about many specific individuals
and organizations. In this context, the Court concludes that the FBI has met its modest burden of
showing “logically how the release of [the processing records] might create a risk of
20
circumvention of the law.” PHE, Inc. v. U.S. Dep’t of Justice, 983 F.2d 248, 251 (D.C. Cir.
1993).
C. File Numbers
The government also seeks to withhold “sensitive case file numbers or sub-files,” on the
theory that the “release of [the] file numbering convention [would] identif[y] the investigative
interest or priority given to such matters.” Dkt. 57-3 at 63 (Fifth Hardy Decl. ¶ 130). As the
FBI’s Record Management Manual explains, “[a] typical case file number consists of a three-
digit classification number, a one- or two-digit alpha designation for subdivisions under that
subject, a two-letter designation for the O[riginating] O[ffice], and then a case number assigned
sequentially by the system.” Dkt. 67-3 at 16. A typical file number, for example, takes the
following form: 91B-BA-124576. Id. In that example, at least according to Plaintiffs, “91” is
the classification number, and refers to various types of bank robbery or bank extortion, id. at 25;
“B” is the alpha designation, which further narrows the classification to “burglary, larceny,
$10,000 and over,” id.; BA indicates the Originating Office, id. at 16, which is Baltimore in the
example; and 124576 is the case number, id. Although Plaintiffs point to various public sources
that define the FBI’s classification codes, Hardy attests that these “lists of FBI classification
codes are neither current nor complete;” that the “classifications can and do change over the
years;” and that “[t]he full list is,” in fact, “itself a classified documents because many
classification codes are classified.” Dkt. 74-2 at 7 (Seventh Hardy Decl. ¶ 14).
The FBI’s case for withholding “sensitive” file numbers again rests on the mosaic theory.
Specifically, the FBI contends that the release of the file numbers “would allow criminals and
other nefarious persons to determine where and what types of investigation the FBI is conducting
or what types of activities by particular people may be or have been under FBI scrutiny, and thus
21
change their patterns of behavior accordingly to avoid FBI scrutiny.” Dkt. 74 at 27–28. File
numbers, the FBI adds, “can show that a particular type of investigation . . . occurs more
regularly with respect to a particular Office of Origin,” allowing those subject to investigation to
create a “‘heat map’ of areas . . . where engaging in anarchist extremism is more or less risky
from a law enforcement standpoint.” Id. at 28. For this reason, the FBI contends, the file
numbers were properly withheld under Exemption 7(E).
Plaintiffs disagree, arguing that the FBI’s theory fails at every step of the Exemption 7(E)
analysis: the file numbers, they argue, were not “compiled for law enforcement purposes;” if
they were compiled for law enforcement purposes, they do not reveal “techniques or procedures
for law enforcement;” and, in any event, their disclosure would not risk circumvention of the
law. Dkt. 68 at 11 & n.10, 12. In addition, Plaintiffs argue that any risk of circumvention can
easily be resolved by segregating the “originating office” designation, leaving the classification
number, alpha designation, and case number. Dkt. 84 at 22–24. As explained below, the Court
agrees with the FBI’s reading of Exemption 7(E) and is persuaded that the exemption can
apply—at least in theory—to relevant portions of sensitive file numbers. The Court cannot
determine on the present record, however, whether all or some portion of the 122 pages of
materials at issue pose the type of risk that the FBI posits.
Plaintiffs first argue that FBI file numbers are not “compiled for law enforcement
purposes,” but rather are created “solely for the purpose of tracking and organizing documents
and other ministerial functions.” Dkt. 84 at 17. To “compile,” Plaintiffs insist, is to “[p]roduce
(something, especially a list, report, or book) by assembling information collected from other
sources” or to “[c]ollect (information) in order to produce something.” Dkt. 68 at 11 n.10; see
also John Doe Agency v. John Doe Corp., 493 U.S. 146, 153 (1989). Applying this definition,
22
they argue that FBI file numbers are not “compiled” but, instead, are simply “created or
generated . . . using a standardized naming convention, much as one would use to create Bates
numbers.” Dkt. 84 at 17. And, even if “the FBI could be said to have ‘compiled’ the file
numbers,” Plaintiffs further argue, “they were not complied for ‘law enforcement purposes;’”
rather, FBI file numbers “exist solely for the purpose of tracking and organizing documents and
other ministerial functions.” Id.The Court is unconvinced. Although Plaintiffs are correct that file numbers serve an
administrative purpose—permitting the FBI to track and organize documents—they ignore the
fact that the tracking system is based on information collected for law enforcement purposes.
The relevant file numbers are not generated at random but, rather, incorporate information
compiled in the course of enforcing the criminal laws. A file number may show—or at least
suggest—for example, that the Baltimore field office of the FBI has opened a bank robbery
investigation and that over $10,000 was stolen from the bank. As relevant here, moreover, a
collection or “mosaic” of FBI file numbers might show—or at least suggestion—whether the
FBI devotes a small amount of attention, or a great deal of attention, to animal rights extremism
in each relevant region of the country. That information is, as a matter of ordinary usage,
“compiled” in the FBI filing system—that is, it is “collected and assembled from various sources
or other documents.” John Doe Agency, 493 U.S. at 153. It is not difficult to conclude,
moreover, that a “rational nexus” exists between the compilation of this information and “one of
the agency’s law enforcement duties.” Pratt v. Webster, 673 F.2d 408, 419 (D.C. Cir. 1982); see
also Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998).
Plaintiffs’ second argument—that disclosure of the file numbers would not reveal a
“technique or procedure”—fares no better. Plaintiffs appear to concede that the FBI’s
23
“investigative priorities” qualify as “techniques . . . for law enforcement” for purposes of
Exemption 7(E), see Dkt. 68 at 12, but argue that disclosure of the file numbers would not, in
fact, reveal the agency’s investigative priorities, Dkt. 84 at 6–9. The Court agrees, as have other
judges in this district, that file numbers can, at least at times, reveal law enforcement “techniques
or procedures.”5 Rather than challenge that premise, Plaintiffs contend that a host of
“confounding factors reduce the possibility that any information about a field office[’s]
prioritization can be discerned from the file numbers” at issue here. Id. at 8. Disclosure of
records showing that more “insider trading investigations” originated in the New York field
office than the Anchorage field office would not, according to Plaintiffs, signal a “higher priority
on investigating insider trading in” New York than in Alaska, but would more likely reflect
differences in staffing levels, population and “frequency with which the crime is actually being
committed or reported in these jurisdictions.” Id. In addition, Plaintiffs assert, “[f]ield offices’
priorities change over time, as do the number of case files being opened;” “[a] field office may
also create a file number at the behest of another agency or field office;” and the aggregate
number of files bearing the relevant designation do not reflect “the duration, complexity,
importance, or allocation of resources to an investigation.” Id.
None of this, however, undercuts the FBI’s contention—at least in theory—that the
particular information Plaintiffs seek could create a “heat map” of the areas of the Country
5
See Thelen v. U.S. Dep’t of Justice, 169 F. Supp. 3d 128, 142 (D.D.C. 2016) (Bureau of
Alcohol, Tobacco, Firearms, and Explosives file numbers); Shapiro v. U.S. Dep’t of Justice, 78
F. Supp. 3d 508, 520 (D.D.C. 2015) (FBI file numbers); Ortiz v. U.S. Dep’t of Justice, 67 F.
Supp. 3d 109, 123 (D.D.C. 2014) (Drug Enforcement Administration and Immigration and
Customs Enforcement codes); Adionser v. Dep’t of Justice, 33 F. Supp. 3d 23, 25–26 (D.D.C.
2014) (Drug Enforcement Administration Geographic Drug Enforcement Program codes); Miller
v. U.S. Dep’t of Justice, 872 F. Supp. 2d 12, 28–29 (D.D.C. 2012) (Drug Enforcement
Administration file numbers).
24
“where engaging in anarchist extremism is more or less risky from a law enforcement
standpoint.” Dkt. 74-2 at 8 (Seventh Hardy Decl. ¶ 15). As a matter of common sense, one
might assume that more insider trading cases are investigated and brought in the FBI’s New
York field office than in its Anchorage office. It is less obvious that a similar assumption applies
to animal rights extremism. Moreover, as the FBI observes, although a single file number may
be unilluminating, Plaintiffs’ request must be construed as part of a larger mosaic. Understood
in that manner, aggregate information about the number of files or documents that bear a
designation for domestic terrorism/animal rights extremism may shed considerable light on the
overall resources that a particular office of the FBI has devoted, or is devoting, to investigating
related crimes. The conclusion that the disclosure of FBI file numbers can—in theory—reveal
sensitive law enforcement techniques, however, does not answer the question whether disclosure
of the file numbers at issue here would, in fact, do so. That question, moreover, is closely related
to Plaintiffs’ third contention—that disclosure of the file numbers could not reasonably be
expected to “risk circumvention of the law.” Dkt. 68 at 12.
Turning to Plaintiffs’ third contention, the parties dispute the threshold question whether
the “risk of circumvention” requirement applies to records that disclose either “guidelines” or
“techniques and procedures,” as Plaintiffs contend, Dkt. 84 at 10, or only to records that disclose
“guidelines,” as the FBI asserts, Dkt. 74-2 at 9–10 (Seventh Hardy Decl. ¶ 19).6 Although this is
6
As Plaintiffs correctly observe, the FBI’s multiple declarations contain extensive legal
argument, much of which does not appear in the agency’s briefs. Because Plaintiffs have fully
responded to those arguments, the Court will consider them and will not accept Plaintiffs’
invitation to strike the Seventh Hardy Declaration on that ground. See Dkt. 84 at 10 n.3. The
FBI should ensure in the future, however, that it includes any legal argument that it wants the
Court to consider in its briefs.
25
an issue that has divided the circuits, Plaintiffs are correct that the D.C. Circuit applies the “risk
of circumvention” requirement “both to records containing guidelines and to records containing
techniques and procedures.” Pub. Employees for Envt’l Resp. v. U.S. Section, Int’l Boundary &
Water Comm’n, 740 F.3d 195, 204 n.4 (D.C. Cir. 2014) (emphasis added). The proper resolution
of the factual question whether disclosure of the file numbers would reveal a law enforcement
technique that a “nefarious” person might then exploit to circumvent the law is, however, far less
clear.
As Hardy explains, the FBI has not adopted a blanket policy of exempting all file
numbers, but has limited its application of the exemption to certain “sensitive” file numbers.
Dkt. 74-2 at 7 (Seventh Hardy Decl. ¶ 14). In particular, he attests that, in the present context,
“where broad requests seek information about a large number of cases, releasing file numbers
can show that a particular type of investigation—for instance, [d]omestic [t]errorism and/or
anarchist extremism—occurs more regularly with respect to a particular [o]ffice of [o]rigin.” Id.
at 8 (Seventh Hardy Decl. ¶ 15). “That information,” in turn, “would allow anarchist extremists
to focus their attentions [on] other geographical areas where the FBI is not devoting the same
resources to that type of criminal activity.” Id. In other words, according to Hardy, when
considered in the aggregate, the file numbers could be used to create “a ‘heat map’” that
“[a]narchist extremists could then use . . . to circumvent the law by committing criminal acts in
the areas where they determine, based on the released FBI file numbers[,] [that] there is less of
an FBI investigative focus.” Id.
26
Plaintiffs, in response, ask the Court to infer from the fact that the FBI has not invoked
Exemption 7(A) that the relevant file numbers do not relate to any ongoing investigations.7 Dkt.
68 at 13. That inference may or may not be correct, and, even if it is correct, it is far from clear
that the risk of disclosure of purely historical law enforcement priorities would be insufficient to
meet the “relatively low bar” under Exemption 7(E) for “withholding” records that reveal law
enforcement techniques. Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). But, even though
Exemption 7(E) does not impose “a highly specific burden of showing how the law will be
circumvented,” it does “require[] that [the agency] ‘demonstrate[] logically how the release of
[the requested] information might create a risk of circumvention of the law.’” Mayer Brown LLP
v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009) (alterations in original) (quoting PHE, Inc. v. U.S.
Dep’t of Justice, 983 F.2d 248, 251 (D.C. Cir. 1993)). Applying this standard, the Court is not
convinced that the mere fact that investigation is closed severs the “logical” link between release
of the information and the risk of circumvention; knowing that the FBI has historically focused
its enforcement efforts in a particular region, for example, might aid a criminal in circumventing
the law. But, at the same time, the Court cannot discern from the existing record whether the
7
Plaintiffs contend that the FBI’s limitation of its non-disclosure policy to certain “sensitive”
file numbers is improper because, where case-by-case analysis is required, the utility of adopting
a “workable,” categorical rule “evaporates,” Dkt. 84 at 13, and because the case-by-case standard
accords the FBI “complete discretion over which file numbers will be released,” id. at 14. That
contention, however, is at odds with the core notion that FOIA encourages the release of more,
rather than less, information, and it mistakenly treats “workability” as an all or nothing concept.
There is no reason, for example, that the FBI could not reasonably conclude that releasing file
numbers showing that most insider trading cases are staffed out of the FBI’s New York field
office—where the largest U.S. stock exchanges are located—would not pose a risk of
circumvention, while also concluding that the principle locus of its domestic counterterrorism
efforts should be kept confidential. Under the prevailing D.C. Circuit law, that is precisely the
type of risk assessment to which the courts should ordinarily defer. See, e.g., Blackwell v. FBI,
646 F.3d 37, 42 (D.C. Cir. 2011).
27
relevant investigations are open, whether they closed in the past few years, or whether they
closed decades ago.
The Court does know, however, that three of the relevant documents relate to the FBI’s
search for records about the murder of Hyram Kitchen, discussed below, and Plaintiffs contend
that the FBI closed its investigation of Kitchen murder “over 25 years ago.” Dkt. 68 at 16. If
that is true, the FBI needs to do more to explain how its disclosure of information revealing the
originating office for that investigation, or any other information, poses a present day threat of
circumvention of the law. And, more generally, given the lack of evidence about if, and when,
the underlying investigations at issue were closed, the Court cannot grant the FBI’s motion for
summary judgment without additional evidence and explanation regarding the specific risk posed
by disclosure of the file numbers in the 122 documents at issue.
Finally, Plaintiffs contend that the FBI has released many of the file numbers at issue in
response to other FOIA requests and thus, under the “official-acknowledgment” doctrine, see
ACLU v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013), it has waived any otherwise applicable FOIA
exemptions. Dkt. 84 at 22. Because Plaintiffs did not raise this contention until they filed their
final reply brief, the Court would ordinarily conclude that Plaintiffs had waived the argument.
See, e.g., Consol. Edison Co. of N.Y. Inc. v. FERC, 347 F.3d 964, 970 (D.C. Cir. 2003) (finding
an argument waived when its proponent “failed to develop it fully until its reply brief”). The
concern that the FBI has not had an opportunity to respond to this argument, however, is
obviated by the fact that parties will, in any event, need to submit additional briefs addressing
whether the age of any or all of the underlying files at issue undercuts the FBI’s reliance on
Exemption 7(E). The Court, accordingly, will direct that the parties meet and confer regarding
Plaintiffs’ official acknowledgment argument and, if they are unable to reach agreement, the FBI
28
may address the issue in its renewed motion for summary judgment. Finally, the parties should
meet and confer regarding the Plaintiffs’ contention that the FBI’s concern about circumvention
can be addressed by simply redacting the originating office designation from the relevant file
numbers, and, if necessary, should brief that issue as well.
The Court, accordingly, will deny both the FBI’s and Plaintiffs’ cross-motions for
summary judgment with respect to the FBI’s withholding of the file numbers included in records
described in footnote 54 of the fifth Hardy declaration. Dkt. 57-3 at 63 n.54.
D. Records Relating to the Murder of Hyram Kitchen
FOIA Exemption 7(A) permits a law enforcement agency to withhold “records or
information compiled for law enforcement purposes” to the extent those records or that
information “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C.
§ 552(b)(7)(A). In response to Plaintiffs’ requests, the FBI relies on Exemption 7(A) “in a
limited fashion to protect the names of targets of pending investigations and also file numbers
associated with pending investigations.” Dkt. 57-1 at 21. In response, Plaintiffs challenge only
one application of Exemption 7(A) to their FOIA requests—the FBI’s withholding of “case notes
and [a] search slip connected with [Shapiro’s] request for records [relating to] the murder of
Hyram Kitchen.” Dkt. 68 at 15. In particular, Plaintiffs contend that “the FBI ceased conducting
its investigation into the murder of Dr. Kitchen over 25 years ago.” Id. at 16. The FBI, in turn,
agrees that the investigation of Dr. Kitchen’s murder “is closed” and that “Exemption 7(A) is not
applicable.” Dkt. 74-2 at 11 (Seventh Hardy Decl. ¶ 22). The FBI further explains, however,
that it had separately withheld the file number associated with the murder investigation pursuant
to Exemption 7(E) and that it continues to assert that exemption. Id. Presumably accepting the
FBI’s concession, Plaintiffs did not further address the applicability of Exemption 7(A).
29
In light of this background, the Court will grant summary judgment in favor of Plaintiffs
with respect to the FBI’s assertion of Exemption 7(A) as to the FOIA processing records
associated with the “parent” FOIA request for records relating to the murder of Dr. Kitchen. To
the extent the FBI seeks to withhold the file numbers referenced in documents 596–97 and 600,
the Court will deny both the FBI’s and Plaintiffs’ cross-motions for summary judgment for the
reasons set forth in section C above.
E. Classified Records
1. Exemption I
The FBI asserts FOIA Exemption 1 to protect documents classified at the “SECRET”
level. That exemption provides that an agency may withhold records that are:
(A) specifically authorized under criteria established by an Executive order to be
kept secret in the interest of national defense or foreign policy and (B) are in fact
properly classified pursuant to such Executive order.
5 U.S.C. § 552(b)(1). Executive Order 13,526, in turn, provides that “[i]nformation may be
originally classified” if four conditions are satisfied: (1) an original classification authority must
classify the information; (2) the information must be “owned, produced by or for, or . . . under
the control of the United States Government;” (3) the information must fall within one of several
categories specified in the Executive Order; and (4) the original classification authority must
determine that the unauthorized disclosure of the information “reasonably could be expected to
result in damage to the national security.” 75 Fed. Reg. 707 (Dec. 29, 2009). The Court must
afford “substantial weight to an agency’s affidavit concerning the details of the classified status
of the disputed record,” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981), and
“little proof or explanation is required beyond a plausible assertion that information is properly
classified,” Morley v. CIA, 508 F.3d 1108, 1124 (D.C. Cir. 2007).
30
In his fifth declaration, Hardy attests that the records at issue were properly classified
under the Executive Order. See Dkt. 57-3 at 20 (Fifth Hardy Decl. ¶¶ 37–38). Plaintiffs, in turn,
raise only one argument, asserting that the redacted documents released to them appear to have
been classified in January 2016, after the FOIA request for those documents was submitted. See
Dkt. 67 at 17 (citing Dkt. 67-4 at 86–87, 97–98, 149–51). In such cases, Executive Order 13,526
provides a heightened standard for classifying documents, allowing previously undisclosed
documents that are subject to a FOIA request to be classified “only if such classification meets
the requirements of th[e] [Executive] [O]rder and is accomplished on a document-by-document
basis with the personal participation or under the direction of the agency head, the deputy agency
head, or the senior agency official designated under . . . this order.” 75 Fed. Reg. at 711
(emphasis added). Plaintiffs argue that Hardy does not attest that the classifications in this case
met that heightened standard.
In his seventh declaration, however, Hardy attests that Plaintiffs have misinterpreted
certain markings on the documents and that the relevant records have, in fact, been classified
since at least 2007 and were never subsequently declassified. See Dkt. 74-2 at 12 (Seventh
Hardy Decl. ¶ 24). Hardy explains that, when the FBI locates classified records that are
responsive to a FOIA request, the Record/Information Dissemination Section (“RIDS”) . . .
independently reviews the documents to determine whether they remain properly classified and
whether it is possible to segregate classified from unclassified information. Id. at 12–13
(Seventh Hardy Decl. ¶ 25). During that review process, RIDS redacts the segragable classified
portions of the requested documents and processes the remainder of the document for other
FOIA exemptions. Id. According to Hardy, “[t]he markings on the documents to which
Plaintiffs refer . . . were placed there by RIDS as part of its review;” they “do not demonstrate
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that these documents were classified or reclassified after receipt of Plaintiffs’ FOIA requests;”
and, in fact, the “documents were classified years before Plaintiffs submitted their FOIA
requests.” Id.
The Court concludes that the FBI has provided ample evidence that the information in
question was properly classified before Plaintiffs’ FOIA requests, and will, accordingly, grant
the FBI’s renewed motion for summary judgment as it relates to information exempted under
FOIA Exemption 1.
2. Exemption 3
Exemption 3 applies to information “specifically exempted from disclosure by statute . . .
if that statute—(A)(i) requires that the matters be withheld from the public in such manner as to
leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to
particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A). In this case, the FBI asserts
Exemption 3 in connection with documents it asserts are protected by the National Security Act
of 1947 (“NSA”), which requires the Director of National Intelligence to “protect intelligence
sources and methods from unauthorized disclosure.” 50 U.S.C. § 3024(i)(1). There is no dispute
that the NSA qualifies as a withholding statute under the terms of Exemption 3. See, e.g., CIA v.
Sims, 471 U.S. 159, 169 (1985); Kirkorian v. Dep’t of State, 984 F.2d 461, 465 (D.C. Cir. 1993);
Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978).
The Supreme Court has construed the relevant language of the NSA to protect “all
sources of intelligence that provide, or are engaged to provide, information the [a]gency needs to
perform its statutory duties with respect to foreign intelligence.” Sims, 471 U.S. at 169–70. As
the D.C. Circuit has explained, moreover, “Exemption 3 differs from other FOIA exemptions in
that its applicability depends less on the detailed factual contents of specific documents; the sole
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issue for decision is the existence of a relevant statute and the inclusion of withheld material
within that statute’s coverage.” Goland, 607 F.2d at 350. Nevertheless, an agency invoking
Exemption 3 must demonstrate its applicability “in a nonconclusory and detailed fashion,” id. at
351, and must provide “the kind of detailed, scrupulous description [of the withheld documents]
that enables a District Court judge to perform a searching de novo review,” Church of
Scientology of Ca., Inc. v. Turner, 662 F.2d 784, 786 (D.C. Cir. 1980).
Here, the FBI relies on portions of Hardy’s fifth and seventh declarations to support its
invocation of the NSA as the relevant withholding statute. In his fifth declaration, Hardy attests
that “the FBI has determined that intelligence sources and methods would be revealed if any of
the withheld information is disclosed to plaintiffs,” Dkt. 57-3 at 31 (Fifith Hardy Decl. ¶ 63), and
that “disclosure of this information presents a bona fide opportunity for individuals to develop
and implement countermeasures, resulting in the loss of significant intelligence information,
sources, and methods relied upon by national policymakers and the I[ntelligence] C[ommunity]
to safeguard national security,” id. at 31 n.32. And in his seventh declaration, Hardy elaborates
that “[t]he FBI cited Exemption 3 . . . to protect information related to . . . the National
Intelligence Program (“NIP”),” which “consists of all programs, projects, and activities of the
Intelligence Community, as well as any other programs of the Intelligence Community
designated jointly by the Director and the head of a United States department or agency or by the
President.” Dkt 74-2 at 13 (Seventh Hardy Decl. ¶ 26). “The activities of the Intelligence
Community,” he further explains, “include the strategic use of various sources to obtain
intelligence related information and are through a myriad of available methods of intelligence
gathering, not all of which are known to the public.” Id. at 13–14.
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Although the FBI’s reliance on the NSA is entitled to substantial deference, the
declarations it has provided to date are simply too broad and conclusory to allow the Court to
perform the type of “searching de novo review” required by the governing precedent. Church of
Scientology, 662 F.2d at 786. As a result, the Court will deny both the FBI’s and Plaintiffs’
cross-motions for summary judgment as to Exemption 3. The FBI may file a renewed motion
for summary judgment, along with a supplemental declaration providing nonconclusory details
in support of its assertion of Exemption 3, and Plaintiffs may renew their cross-motion in
response.
F. Attorney Work Product and Deliberative Records
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). To qualify for this exemption, a document must “satisfy two conditions: its source
must be a Government agency, and it must fall within the ambit of a privilege against discovery
under judicial standards that would govern litigation against the agency that holds it.” Dep’t of
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). The FBI asserts the
deliberative-process and work-product privileges in response to requests from plaintiffs Truthout
and Stein. That privilege protects documents prepared by, or at the direction of, an attorney in
anticipation of litigation. See, e.g., FTC v. Boehringer Ingelheim Pharm., Inc., 778 F.3d 142,
149 (D.C. Cir. 2015). To determine whether a document was prepared “in anticipation of
litigation,” courts in this circuit inquire “whether, in light of the nature of the document and the
factual situation in the particular case, the document can fairly be said to have been prepared or
obtained because of the prospect of litigation.” United States v. Deloitte LLP, 610 F.3d 129, 137
(D.C. Cir. 2010).
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With respect to “Truthout’s single FOIA request for processing notes created by FBI
analysts in responding to a request about Hesham Abu Zubaydah, the brother of a Guantanamo
detainee,” Shapiro I, 153 F. Supp. 3d at 292, the FBI initially asserted the deliberative-process
privilege, along with other defenses. In Shapiro I, the Court concluded that the FBI had
explicitly waived its initial contention that all of the agency’s FOIA processing notes are
protected by the privilege, and that it had failed to offer any “non-conclusory support” for
application of the privilege to the “processing notes compiled in processing Truthout’s [specific]
request.” Id. at 293. The Court granted the FBI, however, the opportunity to file a renewed
motion, supported by a supplemental declaration explaining why the privilege applies. Id.
The FBI responded to this invitation with two lines of factual support, both contained in
the fifth Hardy declaration. Under the first line of support, Hardy attests that FOIA
“[p]rocessing notes and search slips by their very nature are considered working papers . . . and
recommendations.” Dkt. 57-3 at 35 (Fifth Hardy Decl. ¶ 74) (emphasis added). Nothing in this
factual proffer, however, addresses the specific records that Truthout has requested, and, as
explained in Shapiro I, the Court has already held that the FBI has waived the (implausible)
contention that all FOIA search records are by their very nature protected by the deliberative
process privilege. 153 F. Supp. 3d at 293; Dkt. 65 at 16. Under the second line of support,
however, Hardy attests that at least some of the records at issue were “prepared in responding to
other FOIA lawsuits filed by [P]laintiffs,” and that those records “reflect[] deliberations” about
the cases and the FBI’s “litigation strategy and defense.” Id. at 36 (Fifth Hardy Decl. ¶ 76). The
Court, accordingly, will grant the FBI’s motions for summary judgment with respect to its
reliance on the deliberative-process privilege to withhold records in response to the Truthout
FOIA request, but only to the extent those records fall within the second factual justification.
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Moreover, even as to those records, the FBI is obligated to segregate factual material from
deliberative material, see EPA v. Mink, 410 U.S. 73, 91 (1973); Montrose Chem. Corp. v. Train,
491 F.2d 63, 66 (D.C. Cir. 1974), unless the records are also subject to the attorney-client
privilege.
With respect to Stein’s FOIA request, the FBI withheld several documents relating to the
McGehee v. Department of Justice litigation, see 800 F. Supp. 2d 220 (D.D.C. 2011), based on
the deliberative-process privileged. As the Court explained in Shapiro I, 153 F. Supp. 3d at 290,
a document that “would have been created ‘in substantially similar form’ regardless of the
litigation” is not protected by the privilege, Boehringer, 778 F.3d at 149 (quoting Deloitte, 610
F.3d at 138), but the privilege does shield a document “even though it serves multiple purposes,
so long as [it] was prepared because of the prospect of litigation,” Deloitte, 610 F.3d at 138.
Here, Stein’s contention is not that the search slips he has requested would have been created
absent the McGehee litigation, but rather that they should have been. See Shapiro I, 153 F. Supp.
3d at 290. In Shapiro I, the Court noted that Stein’s argument raised a “novel question of law,”
but added that the argument was seemingly at odds with the need to permit lawyers to “work[]
with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their
counsel.” Id. at 291 (quoting Hickman v. Taylor, 329 U.S. 495, 510 (1947)). But, given the lack
of detail in the second Hardy declaration, and the absence of any controlling legal precedent, the
Court denied the FBI’s motion for summary judgment in order to permit more complete
development of the record. Id.Hardy’s fifth declaration resolves the question. As Plaintiffs stress, Dkt. 67 at 18–19,
Hardy avers that the “records created by the litigation paralegal are similar on their faces to the
types of records that a FOIA processor would create when processing” a FOIA request. Dkt. 57-
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3 at 7 (Fifth Hardy Decl. ¶ 11) (footnote omitted). But Hardy also identifies significant ways in
which the litigation paralegal’s search and accompanying records differed from that of an
ordinary FOIA processor:
These printouts [of searches performed by the paralegal] represent a more
expansive search than actually required by the FOIA and include information later
eliminated as not responsive or outside the scope of the request. Handwritten notes
appear on several of the pages reflecting a joint analysis between litigation counsel
and the litigation paralegal of each and every search “hit” and the basis for
including or eliminating the item from the potentially responsive materials. Notes
on the page reflect comparisons between the FOIA processor’s search and the
paralegal’s searches. The paralegal’s search was conducted in response to the
litigation attorney’s request for specific facts for use in the development of
litigation strategy, negotiations, and litigation risk assessment. The results of the
paralegal’s search were reviewed by both she and the litigation attorney for the
above-described purposes.
Id. at 9 (Fifth Hardy Decl. ¶ 18). Similarly, Hardy attests that printouts from the FBI’s File
Automated Control System “and analytical notes taken on them were . . . created and compiled
by the litigation paralegal at the direction of the litigation attorney, and were relied up on by the
attorney to refine litigation and negotiation strategy and responses.” Id. at 10 (Fifth Hardy Decl.
¶ 20).
Plaintiffs “concede[] that there may be some information in these records which would
not have been created but for the litigation,” but they argue that “the FBI has given the Court no
way to separate that wheat from the chaff of the entire file.” Dkt. 67 at 19. That is precisely the
concern the Court flagged for the parties in Shapiro I. As Court explained, “[o]ne reason for
observing the bright-line rule that any records created ‘because of’ litigation are protected—no
matter how similar they look to records that should otherwise have been created during the
ordinary course of business—is that, once litigation is brought, such records are in fact unlikely
to be compiled in precisely the same manner as they might have been before litigation was
contemplated.” Shapiro I, 153 F. Supp. 3d at 291. That is, the prospect of litigation “can
37
introduce strategic considerations into the compilation of even the most mundane records—
strategic considerations that might be revealed to one’s adversary were such records to be made
public through discovery, or, as here, through the operation of FOIA.” Id. In short, the difficulty
in separating the “wheat from the chaff” is not a product of the FBI’s lack of diligence, but the
inherent difficulty in determining whether and how records prepared because of litigation differ
from records that might have been created in the absence of litigation.
Given that the records at issue were created “because of” the McGehee litigation; the
evidence that those records differ in at least certain material respects from the records that would
have been generated in the absence of the litigation; and the inherent difficulty in determining
how the pendency of the litigation affected each specific entry, the Court will grant the FBI’s
motion for summary judgment as to the records requested by plaintiff Stein relating to the
McGehee litigation.
G. Official-Acknowledgment Doctrine
The parties also dispute one final issue left unresolved in Shapiro I. In particular,
plaintiffs National Security Counselors (“NSC”) and Stein sought records created by the FBI in
processing twelve FOIA requests submitted by other people. Shapiro I, 153 F. Supp. 3d at 284.
The FBI released six redacted pages but otherwise denied the requests pursuant to FOIA
Exemptions 6 and 7(C). According to the FBI, the FOIA requests sought records about third
parties—the original requesters—and that information could not be released without the express
consent of those third parties, evidence that the third parties were deceased, “or a clear
demonstration that the public interest in disclosure outweigh[ed] the personal privacy interest[s]”
at stake. Id. at 284–85. Plaintiffs did not, at least in general, dispute the applicability of
Exemptions 6 and 7(C), but instead argued that the FBI had waived any protection when it
38
disclosed the content of the records at issue in “sworn declarations” submitted in litigation
relating to the FBI’s responses to the “parent” FOIA requests. Id. at 285. Applying the “official-
acknowledgment” doctrine, the Court concluded that the FBI “properly withheld some material
under Exemption 7(C),” because the declarations filed in these earlier cases were “neither as
specific nor as detailed as the underlying search slips and processing notes.” Id. at 286. But that
did not resolve the issue because it is settled law in this circuit that an agency must disclose any
“non-exempt portions of a document . . . unless they are inextricably intertwined with exempt
portions,” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (citation
omitted), and “[n]either party . . . ha[d] addressed the segregability question.” Shapiro I, 153 F.
Supp. 3d at 286. The Court, accordingly, denied the parties’ cross-motion, but granted the FBI
leave to supplement the record with a further declaration addressing segregability. Id. at 287.
Hardy now represents that the FBI has “conducted a detailed segregability review of the
processing notes and search slips withheld in full in response to the” relevant NSC and Stein
requests. Dkt. 57-3 at 5 (Fifth Hardy Decl. ¶ 8). Based on this review, he attests “that the
information contained in the processing notes and search slips was more detailed and specific
than the summaries of such information included in the declarations;” “that any similar non-
exempt information in the processing notes and search slips was so inextricably intertwined with
exempt material not reproduced in the relevant declarations that no information could reasonably
be segregated for release without invading the third parties’ privacy interests;” and that “[a]ny
attempt to segregate this intertwined material would only produce disjointed words, phrases, or
sentences that taken separately or together would have minimal or no informational content.” Id.
Plaintiffs, in turn, respond that the FBI could easily segregate and turn over information in the
underlying search slips corresponding to information contained in the publicly available
39
declarations. They argue that if, for example, a declaration reveals that a search located three file
numbers, there would be no additional privacy problem with turning over the search slips
identifying the file numbers or the office in which they were located. Dkt. 67 at 20. And, they
assert that “it strains the imagination to envision a set of notes or search slips which can be
written about in significant detail in a sworn declaration but in which every single piece of
information in that declaration is ‘inextricably’ intertwined with other exempt information,” and
that the FBI “could easily just unredact the actual words used in the declaration.” Id.
The FBI’s most recent submission goes a long way toward addressing the Court’s
question regarding segregability. The Court agrees that, to the extent the redacted records would
reveal no more than “disjointed words, phrases, or even sentences which taken separately or
together have minimal or no information[al] content,” the FBI need not “commit significant time
and resources to” redacting the protected information. Mead Data Cent. v. U.S. Dep’t of the Air
Force, 566 F.2d 242, 261 n.55 (D.C. Cir. 1977). But, in light of Plaintiffs’ colorable contention
that the declarations submitted in the prior litigation revealed significant details about the
searches and that the FBI has waived any right to object to the disclosure of that information, and
given the potential value to Plaintiffs and the public of an ability to look behind the types of
agency declarations that typically dominate FOIA litigation, the Court will require the FBI to file
copies of the search slips from one randomly selected FOIA request, from which only the non-
public information has been redacted. To avoid any dispute between the parties regarding the
selection of this sample, the Court has randomly selected FOIA request number 1146761, one of
the twelve cases NSC sought records from in FOIA request number 1174832-000. See Dkt. 21-4
at 45.
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The Court will, accordingly, deny the parties’ cross-motions for summary judgment
relating to the segregability of non-public information contained in the records responsive to the
NSC’s second FOIA request and Stein’s first FOIA request. After the FBI submits the sample,
redacted records described above, the parties may renew their respective motions for summary
judgment regarding this issue.
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CONCLUSION
For the reasons stated above, the FBI’s motion for leave to file Hardy’s eighth declaration
ex parte and in camera is hereby GRANTED; Plaintiffs’ motion to strike the eighth Hardy
declaration and to make public portions of the third and sixth Hardy declarations is hereby
DENIED. The FBI’s motion for summary judgment is hereby GRANTED as to the application
of Exemption 7(E) to the search processing records relating to the forty-two “parent” FOIA
requests for which Shapiro received “No Records” responses; as to the application of FOIA
Exemption 1; and as to the application of Exemption 5 to the McGehee litigation documents, and
to the Zubaydah documents to the extent that they reflect deliberations about the FBI’s litigation
strategy and defense; and the motion is otherwise DENIED. Plaintiffs’ cross-motion for
summary judgment is hereby GRANTED as to the application of Exemption 7(A) to records
relating to the murder of Dr. Hyram Kitchen, and the motion is otherwise DENIED.
The parties are hereby ORDERED to appear for a status conference at 10:00 a.m. on
April 5, 2017, in Courtroom 21.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: March 6, 2017
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