Reporters Committee for Freedom of the Press v. United States Department of Justice ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS,
Plaintiff,
Civil Action No. 19-2847 (TFH)
v.
UNITED STATES DEPARTMENT OF
JUSTICE, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Reporters Committee for Freedom of the Press (“RCFP” or “Plaintiff”) brings
this lawsuit against the United States Department of Justice (“DOJ”), the Federal Bureau of
Investigation (“FBI”), and the Executive Office for United States Attorneys (“EOUSA”), under
the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq. Plaintiff seeks records from
the FBI, the DOJ Criminal Division (“Criminal Division”), and the EOUSA related to the federal
government’s involvement in the questioning of freelance journalist Bryan Carmody during a
law enforcement raid of his San Francisco home in May 2019. RCFP alleges that (1) the three
entities conducted inadequate searches for records, and (2) the FBI’s invocations of FOIA
Exemptions 6 and 7(C) to withhold names of two FBI Special Agents is unwarranted. Before the
Court are Defendants’ Motion for Summary Judgment [ECF. No. 15] and RCFP’s Cross-Motion
for Partial Summary Judgment [ECF. No. 16]. The Court held oral argument on the parties’
motions on September 20, 2021. Upon careful consideration of the parties’ submissions, oral
argument, the applicable law, and the entire record, for the following reasons, the Court will
grant in part and deny in part RCFP’s motion and grant in part and deny in part Defendants’
motion.
I. Background
RCFP is a nonprofit association of reporters and editors. See Compl. ¶ 3 [ECF. No. 1].
Bryan Carmody is a journalist based in San Francisco, California. Id. ¶ 15. In April 2019, the
San Francisco Police Department (“SFPD”) requested Carmody’s cooperation in identifying his
source for an internal SFPD report concerning the death of San Francisco public defender Jeff
Adachi. Id. ¶ 4; Declaration of Adam Marshall (“Marshall Decl.”) Ex. 1 [ECF. No. 16-3].
Carmody declined to identify his confidential source. Subsequently, on May 10, 2019, the SFPD
executed warrants to search Carmody’s home and office, seizing his computers, phones, work
product, and other devices. See Pl.’s Combined Statement of Material Facts as to Which there is
no Genuine Issue and Resp. to Defs.’ Statement of Material Facts (“Pl.’s SMF”) ¶ 70 [ECF. No.
16-2]; Compl. ¶ 2; Marshall Decl. Ex. 8. While the SFPD searched Carmody’s home, two FBI
agents questioned Carmody. Pl.’s SMF ¶ 71; Defs.’ Response to Pl.’s SMF (“Defs.’ SMF”) ¶ 70.
Carmody refused to speak with the agents and informed law enforcement that he was a
journalist. See Marshall Decl. Ex. 4. Upon learning of the raid, RCFP submitted the FOIA
requests at issue in this case to “obtain more information about the federal government’s
involvement” in the matter. Pl.’s Mem. at 2 [ECF. No. 16-1].
The Carmody raid garnered significant media attention. In the aftermath, Carmody
successfully moved to quash the search warrants, arguing that they were improperly issued in
violation of a California shield law protecting journalists. See Pl.’s Mem. at 5 (citing various
California State Court orders). In March 2020, San Francisco approved a $369,000 settlement to
compensate Carmody for the illegal search and the seizure of his property. Id. at 6.
2
II. The FOIA Requests
On June 21, 2019, RCFP submitted FOIA requests concerning Carmody to the FBI, the
DOJ Criminal Division, and the EOUSA. RCFP sought:
1. All records mentioning or referring to Bryan Carmody.
2. All records, including email correspondence, text messages, and other electronic
messages, that include the term “Carmody” (case insensitive) and any of the
following keywords (case insensitive):
a. Shield
b. Privacy Protection Act
c. PPA
d. Leak
e. Leaks
f. Subpoena
g. Newsgathering
h. Question
i. Questions
j. Questioning
k. Media
l. Warrant
m. Search
n. Seize
o. Seizure.
3. All communications, including email correspondence, text messages, and other
electronic messages between any individual at the [recipient agency] and
a. the San Francisco Police Department
b. the District Attorney’s Office for the City and County of San Francisco
c. the San Francisco Sheriff’s Department
d. the California Bureau of Investigation
e. the California Office of the Governor, and/or
f. the California Highway Patrol that mention, refer to, or discuss Bryan
Carmody;
4. All records mentioning, referring to, or constituting the memorandum sent from the
United States Attorney’s Office for the Northern District of California seeking
approval for questioning, arresting, or charging Bryan Carmody
Pl.’s SMF ¶¶ 74, 75, 77, 79; Defs.’ SMF ¶¶ 74, 75, 77, 79.
3
As detailed more fully below, neither the Criminal Division nor the EOUSA produced
any records in response to RCFP’s requests. Pl.’s SMF ¶¶ 116, 119, 120; Defs.’ SMF ¶¶ 116,
119, 120. The FBI produced one partially redacted record. Pl.’s SMF ¶ 84. The FBI redacted the
names of the FBI agents who questioned Carmody, citing Exemptions 6 and 7(C). 1
III. The DOJ’s News Media Policy
Relevant to this case is the DOJ’s policy regarding obtaining information from, or records
of, members of the news media; and regarding questioning, arresting, or charging members of
the news media (“News Media Policy”), codified at 28 C.F.R. § 50.10. The News Media Policy
constrains the use of law enforcement with respect to journalists and mandates review and
approval before questioning or seizing work product from members of the news media.
Specifically, the News Media Policy mandates that:
No member of the Department shall subject a member of the news media to
questioning as to any offense that he or she is suspected of having committed in the
course of, or arising out of, newsgathering activities without first providing notice
to the Director of the Office of Public Affairs and obtaining the express
authorization of the Attorney General. The government need not view the member
of the news media as a subject or target of an investigation, or have the intent to
prosecute the member of the news media, to trigger the requirement that the
Attorney General must authorize such questioning.
28 C.F.R. § 50.10(f)(1).
IV. Legal Standard
Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary
judgment 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). The “vast majority of
FOIA cases can be resolved on summary judgment.” Brayton v. Office of the U.S. Trade
1
The FBI also withheld file numbers under Exemption 7(A); RCFP does not challenge the
FBI’s withholding of file numbers.
4
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). When a federal agency moves for summary
judgment in a FOIA case, the court views all facts and inferences in the light most favorable to
the requester, and the agency bears the burden of showing that it complied with FOIA. Chambers
v. U.S. Dep’t of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009). The agency “must show beyond
material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant
documents,” Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (internal
quotation marks omitted), and must also explain why any of the nine enumerated exemptions
listed in 5 U.S.C. § 552(b) apply to withheld information, Judicial Watch, Inc. v. Food & Drug
Admin., 449 F.3d 141, 147 (D.C. Cir. 2006).
V. Adequacy of the Search
The Court will first address whether each of the defendants performed adequate searches
for records. See Moore v. Bush, 601 F. Supp. 2d 6, 13 (D.D.C. 2009) (“The question is not
whether other responsive documents may exist, but whether the search itself was adequate.”).
A. Legal Standard
As noted above, “[t]he adequacy of an agency’s search is measured by a standard of
reasonableness and is dependent upon the circumstances of the case.” Weisberg, 705 F.2d at
1351 (internal quotation marks and citations omitted). To prevail on a motion for summary
judgment under FOIA, an agency must “demonstrate beyond material doubt that its search
was reasonably calculated to uncover all relevant documents.” Valencia Lucena v. U.S. Coast
Guard, 180 F.3d 321, 325 (D.C. Cir. 1999). An agency can satisfy this standard by submitting
“[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed,
and averring that all files likely to contain responsive materials (if such records exist) were
searched.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
5
The agency’s affidavits should be “accorded a presumption of good faith, which cannot
be rebutted by ’purely speculative claims about the existence and discoverability of other
documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (quoting
Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). The presumption of
good faith can be overcome, and summary judgment in favor of the agency is inappropriate, if
“a review of the record raises substantial doubt as to the search’s adequacy, particularly in view
of well-defined requests and positive indications of overlooked materials.” Reps. Comm. for
Freedom of Press v. Fed. Bureau of Investigation, 877 F.3d 399, 402 (D.C. Cir. 2017) (cleaned
up); Valencia Lucena, 180 F.3d at 326.
i. FBI
The FBI has detailed its search for responsive records in two declarations from Michael
G. Seidel. 2 See Declaration of Michael Seidel (“Seidel Decl.”) [ECF No. 15-3]; Second
Declaration of Michael Seidel (“Second Seidel Decl.”) [ECF. No.19-4]. In responding to RCFP’s
FOIA request, the FBI conducted an index search of its Central Records System (“CRS”). Seidel
Decl. ¶ 24. The CRS is an extensive system of records that spans the entirety of the FBI
organization. Id. at ¶ 13. The CRS does not, however, index every individual’s name or subject
matter for which the FBI maintains records. Id. at ¶ 15. Rather, the system is indexed using two
types of entries: (1) a main index entry, which is “created for each individual or non-individual
that is the subject or focus of an investigation. The main subject(s) are identified in the case title
of most documents in a file”; and (2) a reference index entry “created for individuals or non-
individuals that are associated with the case but are not the main subjects. These subjects are not
2
Mr. Seidel is the Acting Section Chief of the Record/Information Dissemination Section
of the Information Management Division of the FBI.
6
typically identified in the case title of a file.” Id. ¶ 14. The FBI determined that to the extent there
were relevant emails [and] texts “they would have been serialized and placed in the CRS for
recordkeeping [and] future retrieval and located through the search.” Id. ¶ 26.
Here, the FBI conducted an index search of the CRS for main and reference records and
located one reference record. Pl.’s SMF ¶ 84; Defs.’ SMF ¶ 84. The FBI also conducted a term
search for “Carmody” within the relevant investigative file in which the reference record was
located, which yielded no additional records. Seidel Decl. ¶ 27. Because of the way the CRS is
indexed, an index search does not search the text of any underlying records maintained in the
CRS. Id. ¶¶ 14-15.
The FBI did not search its email systems or other electronic messages in response to
RCFP’s request because “the FBI determined that an electronic search of emails/texts was not
reasonable without a clear and certain lead from Plaintiff or in the processed record.” Seidel
Decl. ¶ 26.
Relevant here, in a separate records request to the SFPD (made after RCFP initiated the
instant action), Plaintiff was provided a number of responsive emails sent from the FBI email
accounts of FBI Special Agents. See Marshall Decl. ¶¶ 12-14; Exs. 6-7. The emails include
discussion of the case, execution of the search warrant, and the questioning of Carmody by
SFPD and the FBI. Id. Certain of these emails explicitly reference Carmody by name in the
subject line. Id. at Ex. 5.
As enumerated below, an index-only search of solely the CRS does not demonstrate that,
in this case, the FBI undertook “a good faith effort to conduct a search for the requested records,
using methods which can be reasonably expected to produce the information requested.”
Oglesby, 920 F.2d at 68.
7
First, the CRS is an incomplete repository as it does not contain all potentially relevant
email records. FBI personnel are not necessarily required to transfer “transitory” or “non-record”
emails to the system. See Second Seidel Decl. ¶ 8 n.5. That a responsive record might be
classified as “transitory” or “non-record” does not, however, absolve an agency of its duty to
conduct a search reasonably designed to uncover such responsive records. That is, the FBI’s
classification of its own records does not affect its duties to search for responsive records under
FOIA. Indeed, Plaintiff has affirmative proof that the FBI did not place a number of clearly
responsive emails concerning Carmody in the CRS. See Marshall Decl. Exs. 6-7. As the D.C.
Circuit has explained, “summary judgment must be denied if a review of the record raises
substantial doubt about the search’s adequacy, particularly in view of well-defined requests and
positive indications of overlooked materials.” DiBacco v. Dep’t of the Army, 926 F.3d 827, 832
(D.C. Cir. 2019) (internal quotations omitted). Here, Plaintiff has offered not just positive
indications of overlooked materials but definitive proof that such overlooked records exist.
Although the FBI correctly notes that the “fact that a particular document was not found
does not demonstrate the inadequacy of a search,” Boyd v. Crim. Div. of Dep’t of Justice, 475
F.3d 381, 391 (D.C. Cir. 2007), the fact that responsive emails were found, in the exact location
(the San Francisco Field Office) indicated in Plaintiff’s request indicates that the search
methodology was inadequate and not “reasonably calculated to uncover all relevant
documents.” Valencia Lucena, 180 F.3d at 325. When a request seeks information that was
“plainly was not contained within CRS . . . the FBI could not put its head in the sand and ignore
an obvious source for the requested material.” Jett v. Fed. Bureau of Investigation, 139 F. Supp.
3d 352, 368 (D.D.C. 2015).
8
Second, even if the CRS contained all relevant records, an index search does not search
the full text of the underlying documents and would therefore be unlikely to uncover all (or
potentially even most) responsive documents. An index search of the CRS searches only pre-
populated terms that FBI officials choose as tags. Seidel Decl. ¶¶ 14–15, 23–24. As the name
suggests, indexing is done at a relatively high level, and an index search would be unlikely to
uncover records with the specific keywords sought by RCFP. See id.; see also Shapiro v. Dep’t
of Justice, 944 F.3d 940, 943 (D.C. Cir. 2019) (describing an FBI index search as “akin to
opening a book to a specific index entry and finding the page numbers which the indexer
identified as relevant” compared to a text search, which “by contrast, combs through
the entire (metaphorical) book to identify each instance in which the word appears in the text, as
one might with an e-book.”). In the context of RCFP’s FOIA request, which sought email
correspondence, text messages, and other electronic messages containing certain specific
keywords, reliance on an index-only search cannot be “reasonably expected to produce the
information requested.” Oglesby, 920 F.2d at 68.
As previously noted, “the burden is on the agency to demonstrate that it made a good
faith effort to conduct a search using methods which can be reasonably expected to produce the
information requested.” DiBacco v. U.S. Army, 795 F.3d 178, 188 (D.C. Cir. 2015). The FBI has
not met its burden. Accordingly, the Court finds that the FBI’s search was unreasonable and will
grant summary judgment for Plaintiff as to that search.
9
ii. Criminal Division
According to a declaration submitted by Amanda Marchand Jones 3, when processing a
FOIA request for records maintained by the Criminal Division, the FOIA unit “initiates a records
search to the Criminal Division Section(s) believed to maintain potentially responsive records.”
Declaration of Amanda Jones (“Jones Decl.”) ¶ 8 [ECF. No. 15-2]. Relevant here are the Policy
and Statutory Enforcement Unit of the Department of Justice (“PSEU”) and its database, the
Front Office Tracking System (“FOTS”). Pursuant to the News Media Policy, federal law
enforcement must consult with PSEU before initiating covered law enforcement interactions
with journalists. Id. ¶ 11; see also 28 C.F.R. § 50.10(f)(1). Consultation and authorization
requests to PSEU are tracked in the FOTS. Id. ¶ 13; Pl.’s SMF ¶¶ 113–14; Defs.’ SMF ¶¶ 113-
114.
Like the request to the FBI, RCFP’s request to the Criminal Division specifically asked
for emails, text messages, and other electronic communications. In response, the Criminal
Division searched only the PSEU, as it determined that office was “most likely to maintain
records responsive to Plaintiff’s request” and located no responsive records. Jones Decl. ¶¶ 11-
14; Pl.’s SMF ¶¶ 115-116; Defs.’ SMF ¶¶ 115-116. The Criminal Division did not search emails,
text messages, or other electronic messaging services. Jones Decl. ¶ 14.
The Criminal Division maintains that their search of only the PSEU was reasonable
because (1) PSEU was the unit most likely to house records; and (2) “the “News Media Policy
only applies to federal investigations; therefore, PSEU is not involved in the review or execution
of state search warrants.” Defs.’ Reply at 4-5 [ECF No. 19].
3
Ms. Jones is Chief of the FOIA/Privacy Act Unit in the Office of Enforcement
Operations of the DOJ Criminal Division.
10
If the News Media Policy was followed, responsive records would likely reside in the
PSEU/FOTS. However, as Plaintiff notes, if the policy was not followed, PSEU would not have
been consulted and any records concerning the decision to question Carmody would not be
stored in FOTS. In the event the News Media Policy was determined not to apply, any internal
deliberations discussing the decision not to consult PSEU would necessarily be housed
elsewhere.
Here, the facts suggest that the News Media Policy was not followed. Pursuant to the
News Media Policy, before the FBI can question a journalist it must provide notice to the
Director of the Office of Public Affairs and obtain “express authorization” from the Attorney
General. See 28 C.F.R. § 50.10(f)(1). The record of approval would then be stored in the PSEU.
Carmody, a journalist, was questioned by the FBI – an activity that should have required
approval – but there is no record of any authorization in the PSEU. Because the policy was
seemingly not followed, the PSEU was not the unit most likely to house records concerning the
decision to question Carmody, and a reasonable search would necessarily include other DOJ
components.
Further underscoring the unreasonableness of searching only the PSEU, in her second
declaration Ms. Jones states that “PSEU is not involved in the review or execution of state search
warrants.” Supplemental Declaration of Amanda Jones (“Jones Supp. Decl.”) ¶ 6 [ECF. No. 19-
1]. If the PSEU was entirely uninvolved in the decision to question Carmody, then responsive
documents would necessarily be housed elsewhere. Searching only the PSEU is therefore
unreasonable. In sum, the agency’s affidavits do not sufficiently explain why “no other record
system was likely to produce responsive documents” Mobley v. CIA, 806 F.3d 568, 582 (D.C.
11
Cir. 2015), and instead offer incompatible and independently insufficient rationales for limiting
the search to the PSEU.
Further, Plaintiff sought communications concerning matters unrelated the News Media
Policy, which could reasonably be stored outside the PSEU. For example, RCFP’s request also
sought records of communications between different entities mentioning Carmody and
Newsgathering, Leak, Shield, and Privacy Protection Act. A search limited to PSEU/FOTS
would be unlikely to uncover documents responsive to these requests.
An agency is not required to search every record system, however “the agency cannot
limit its search to only one record system if there are others that are likely to turn up the
information requested.” Oglesby, 920 F.2d at 68. Because a search of only the PSEU was
unreasonably narrow, the Court will grant summary judgment for Plaintiff as to the Criminal
Division’s search.
iii. EOUSA
Again, similar to the requests to the FBI and Criminal Division, RCFP’s request to the
EOUSA sought, in part, communications, including email correspondence, text messages, and
other electronic messages between individuals at the United States Attorney’s Office for the
Northern District of California (“USAO/NDCA”) and certain specified California law
enforcement entities that mention Carmody. The EOUSA detailed their initial search in short
declarations from Patricia A. Mahoney 4 and Tricia Francis 5. Upon receipt of RCFP’s request, the
EOUSA forwarded the request to Ms. Mahoney to conduct a search for responsive records.
Declaration of Patricia A. Mahoney (“Mahoney Decl.”) ¶¶ 5-6 [ECF No. 15-5]. Ms. Mahoney
4
Ms. Mahoney is the FOIA Legal Assistant in the Criminal Division of the USAO/NDCA.
5
Ms. Francis is an Attorney-Advisor with the EOUSA.
12
and the USAO/NDCA Records Management Coordinator searched for Carmody’s name in Case
View (a case management database), PROMIS (a legacy case management database), and Lexis
Nexis. Mahoney Decl. ¶¶ 7-10. Those searches returned no responsive records. Id.In February 2020, four months after the instant suit was filed, Ms. Mahoney sent an email
to all attorneys in the Criminal Division of the USAO/NDCA asking them to search their emails,
correspondence, and text messages for responsive documents and to notify her if any responsive
records were located. 6 Supplemental Declaration of Patricia Mahoney (“Supp. Mahoney Decl.”)
¶¶ 6-7 [ECF. No. 19-2]. Ms. Mahoney received no responses to her email, and there is no
information in the record as to whether any Criminal Division attorneys actually searched for
records. Id.; Mahoney Decl. ¶ 12; Supp. Mahoney Decl. ¶ 8; Pl.’s SMF ¶ 123.
In addition to Ms. Mahoney’s efforts, an Assistant United States Attorney (“AUSA”) in
the office “conferred with two attorneys . . . who could, in his view, possibly have had
responsive records.” Mahoney Decl. ¶ 13. Those attorneys told the AUSA that they had no
responsive records. Id. He then informed Ms. Mahoney. Id. In addition, the office states that it
searched the emails of a former attorney with the USAO/NDCA for responsive records but found
none. See Declaration of Lester Pagtalunan 7 (“Pagtalunan Decl.”) ¶¶ 4-6 [ECF. No. 19-3]; Pl.’s
SMF ¶ 125; Defs.’ SMF ¶ 125. Specifically, Mr. Pagtalunan, searched a former AUSA’s email
for the term “Bryan Carmody” within the date range of February 1, 2019 through February 1,
2020. Pagtalunan Decl. ¶ 6.
6
Ms. Mahoney informed the recipients that Plaintiff was seeking all communications,
including email correspondence, text messages and other electronic messages, between
USAO/NDCA employees and certain other enumerated entities, “that mention, refer to, or
discuss BRYAN CARMODY.” Supp. Mahoney Decl. ¶¶ 6-7.
7
Mr. Pagtalunan is Supervisor of the Information Technology Department of the
USAO/NDCA.
13
Like the searches performed by the FBI and the Criminal Division, the EUOSA’s search
was not “reasonably calculated to uncover all relevant documents.” Valencia Lucena, 180 F.3d
at 325. Ms. Mahoney’s first declaration is insufficient to satisfy the agency’s obligations because
it does not set forth a specific rationale – including search terms and method – supporting the
reasonableness of the search. See Oglesby, 920 F.2d at 68 (finding an agency’s search was
inadequate because “the affidavit does not show, with reasonable detail, that the search
method…was reasonably calculated to uncover all relevant documents. Nor does the affidavit
identify the terms searched or explain how the search was conducted.”); Reps. Comm. for
Freedom of Press, 877 F.3d at 403 (agency “declarations’ principal flaw lies in their failure to set
[ ] forth the search terms and the type of search performed with the specificity our precedent
requires”) (cleaned up).
Ms. Mahoney’s first declaration represents that she only performed a search for “Bryan
Carmody” in the EOUSA databases Case View and PROMIS and the public database Lexis
Nexis. The affidavit provides scant detail about what records are stored in Case View and
PROMIS or how those records are organized and can be located. Given the scope of the request
at issue, simply searching for “Bryan Carmody” with no additional search terms and without
sufficient explanation as to why Case View or PROMIS would be likely to contain responsive
records is an insufficient response to a detailed FOIA request.
Ms. Mahoney’s second declaration adds that she sent an office-wide email seeking
responsive communications to which she received no responses. In this case, a singular office-
wide email that received no responses – not even a singular response confirming receipt – is not
sufficient to meet an agency’s obligations under FOIA. An agency must aver “that all files likely
to contain responsive materials (if such records exist) were searched.” Oglesby, 920 F.2d at 68;
14
see also Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (explaining that an affidavit that
“merely identifies the [agency components] that were responsible for finding responsive
documents without identifying the terms searched or explaining how the search was conducted in
each component” could not justify summary judgment). Here, there is no indication that a search
was ever conducted by any current NDCA Criminal Division attorneys because Ms. Mahoney
did not receive any responses to her email. In response to a FOIA request, the agency must
actually conduct a search of files likely to contain responsive documents. An agency averment
that it merely requested agency officials perform a search is inadequate.
As discussed above, the adequacy of the agency’s search is determined by looking to its
overall reasonableness. Searching one former AUSA’s emails with specific search terms is not
enough under the circumstances. The cursory search of case management databases, without
specific search terms beyond “Carmody” and an office-wide email that received no responses
constitutes an unreasonable search and justifies granting summary judgment in favor of the
RCFP.
VI. FBI’s Withholdings
In response to RCFP’s FOIA request, the FBI produced a one-page record containing the
interview notes from its questioning of Carmody. Marshall Decl. Ex. 4. The FBI redacted from
that record the names of the two agents who questioned Carmody, citing Exemptions 6 and 7(C).
It also redacted file numbers under Exemption 7(A). 8 RCFP maintains the information was
improperly withheld because (1) one of the agent’s names is already in the public domain, (2)
8
Exemption 7(A) protects records or information compiled for law enforcement purposes,
the release of which could reasonably be expected to interfere with enforcement proceedings. As
previously stated, RCFP does not challenge the FBI’s redactions of file numbers under
Exemption 7(A).
15
there is no foreseeable harm in the release of this information, and (3) there is a “overriding
public interest in knowing who violated longstanding DOJ rules regarding questioning members
of the news media.” Pl.’s Mem. at 3-4.
1. Legal Standard
“FOIA Exemptions 6 and 7(C) seek to protect the privacy of individuals identified in
certain agency records.” ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir.
2011). Exemption 6 protects “personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy,” 5 U.S.C.
§ 552(b)(6), and Exemption 7(C) protects “records or information compiled for law enforcement
purposes” that “could reasonably be expected to constitute an unwarranted invasion of personal
privacy,” id. § 552(b)(7)(C). When an agency invokes both exemptions, courts “focus”
on Exemption 7(C) because it “establishes a lower bar for withholding material.” Nova Oculus
Partners, LLC v. U.S. Sec. & Exch. Comm’n, 486 F. Supp. 3d 280, 288 (D.D.C. 2020) (quoting
Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice, 746 F.3d 1082, 1091
n.2 (D.C. Cir. 2014)); see also Judicial Watch, Inc. v. U.S. Dep’t of Justice, 365 F.3d 1108, 1125
(D.C. Cir. 2004) (noting that the Supreme Court has construed Exception 7(C) as broader than
Exemption 6 and that the D.C. Circuit has “deemed the privacy inquiry of Exemptions 6 and
7(C) to be essentially the same”). Because the Plaintiff does not dispute that the records at issue
in this case were compiled for law enforcement purposes as required for Exemption 7(C), the
Court has “no need to consider Exemption 6 separately because all information that would fall
within the scope of Exemption 6 would also be immune from disclosure under Exemption 7(C).”
Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011).
16
Under Exemption 7(C), courts balance the privacy interests implicated by the records
being sought against the public’s interest in their disclosure. Citizens for Responsibility & Ethics,
854 F.3d at 681. The government “must account for the privacy interests at stake, recognizing
that previous disclosures or admissions may have diminished those interests.” Id. at 683. But if
the withheld information implicates a substantial privacy interest, the FOIA requester “bears the
burden of showing (1) that ‘the public interest sought to be advanced is a significant one, an
interest more specific than having the information for its own sake,’ and (2) that the information
[it] seeks ‘is likely to advance that interest.’” Roth, 642 F.3d at 1175 (quoting Nat’l Archives &
Records Admin. v. Favish, 541 U.S. 157, 172 (2004)). It is well established that “the only public
interest relevant for purposes of Exemption 7(C) is one that focuses on the citizens’ right to be
informed about what their government is up to.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106,
1115 (D.C. Cir. 2007).
In 2016, Congress enacted the FOIA Improvement Act, Pub. L. No. 114-185, 130 Stat.
538 (2016). That legislation implemented several changes to FOIA designed to increase the
availability of government records to the public. Reps. Comm. for Freedom of the Press v. Fed.
Bureau of Investigation, 3 F.4th 350, 357 (D.C. Cir. 2021). Specifically, Congress mandated that
agencies may only withhold information under a FOIA exemption if the agency “reasonably
foresees that disclosure would harm an interest protected by an exemption” or if “disclosure is
prohibited by law[.]” FOIA Improvement Act § 2, (codified at 5 U.S.C. § 552(a)(8)(A)(i)).
2. Analysis
The FBI asserts that it “withheld the names of FBI Special Agents (“SAs”) pursuant to
Exemptions 6 and 7(C), as the FBI determined that the individuals’ privacy interests outweighed
any public interest in disclosure.” Defs.’ Mem. at 15. Specifically, the FBI asserts that
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(1) disclosure of the SA’s names would “prejudice their effectiveness in conducting other
investigations or performing their day-to-day work”; and (2) the redactions serve “to protect FBI
SAs, as individuals, from unnecessary, unofficial questioning as to the conduct of this or other
investigations.” Id. The FBI further maintains that if the SA’s names are released, they “may
become targets of harassing inquiries for unauthorized access to information.” Second Seidel
Decl. ¶¶ 16-17.
RCFP rejoins that (1) the FBI has offered only speculative claims as to the privacy
interests at stake; (2) the identity of one of the special agents who questioned Carmody is in the
public domain; and (3) any privacy interest in the names of these agents is overcome by the
strong public interest in knowing who was involved in the questioning of a journalist in violation
of the DOJ’s News Media Policy. Pl.’s Mem. at 22-26.
a. The Identity of One of the FBI Special Agents Who Questioned Carmody
is in the Public Domain
Under the public domain doctrine, records that may otherwise be exempt from disclosure
“lose their protective cloak once disclosed and preserved in a permanent public record.” Cottone
v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999). “The government may not rely on an otherwise
valid exemption to justify withholding information that is already in the public domain.”
Students Against Genocide v. Dep’t of State, 257 F.3d 828, 836 (D.C. Cir. 2001); see also
Citizens for Resp. & Ethics in Washington v. U.S. Dep’t of Justice, 840 F. Supp. 2d 226, 233
(D.D.C. 2012) (“One can have no privacy interest in information that is already in the public
domain . . . .”).
A plaintiff asserting a claim of prior disclosure “must bear the initial burden of pointing
to specific information in the public domain that appears to duplicate that being withheld.”
Public Citizen v. Dep’t of State, 276 F.3d 634, 645 (D.C. Cir. 2002); see also Neuman v. United
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States, 70 F. Supp. 3d 416, 426 (D.D.C. 2014) (“Plaintiff must point to ‘specific information in
the public domain that appears to duplicate that being withheld.’”) (quoting Afshar v. Dep’t of
State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)).
Although the FBI has not officially acknowledged his role in its pleadings, one of the
agent’s names along with a clear indication he participated in the questioning of Carmody on
May 10, 2019 appears in emails obtained and published by RCFP from the SFPD via a public
records request. In its state records request, RCFP requested “copies of all emails that were sent
or received between May 11, 2019 and December 31, 2019 and that contain both ‘Carmody’ and
‘FBI.’ Marshall Decl. Ex. 5. As part of the SFPD’s response, it provided an email chain with the
subject “Warrant Service” between Special Agent Michael Eldridge and Lt. Pilar Torres of the
SFPD. The email chain begins with Lt. Torres providing information (redacted by the SFPD) to
SA Eldridge on May 9, 2019 with the note “Mike, Please see the attached information.” Id. SA
Eldridge responds, “Got it, Thanks Pilar. We’ll see you in the morning. Regards, Mike.” Id. The
next day, Lt. Torres sent SA Eldridge a short email update, which stated in part, “We ended up at
a secondary location where we met with success! He still would not give any additional
information but we still have the digital media to scrub”; to which SA Eldridge responded:
“Great to hear, thanks for the update Pilar. Sorry we weren’t able to get a better result for you on
our end, but thanks for letting us take a shot. I spoke with Joe a little earlier, but if you guys are
all right with it, we were going to try to follow up with his attorney early next week. If you need
anything else from us, please let us know. We’ll send over the report from today once it’s
finalized in our system. Regards, Mike.” Id.That email chain, in particular Eldridge’s response in the evening of May 10, 2019,
specifically identifies Eldridge as one of the agents who questioned Carmody earlier that day.
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Although the FBI has not officially acknowledged the identity of the agents who questioned
Carmody, neither the FBI’s pleadings nor representations made at the hearings cast doubt as to
the authenticity the emails or rebut the argument that Eldridge’s identity is already in the public
domain. The released email chain, therefore, provides information duplicative to that being
withheld and Exemption 7(C) cannot apply as to that redaction. See Davis v. U.S. Dep’t of
Justice, 968 F.2d 1276, 1280 (D.C. Cir. 1992).
b. Balancing Test
As to the other agent who questioned Carmody, the Court must balance the privacy
interest in the release of his name his with the public interest in knowing who was involved in
the questioning of a journalist in alleged violation of the DOJ’s News Media Policy.
The unknown FBI agent certainly has some privacy interests at stake. See Schrecker v.
U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (collecting cases) (noting that the D.C.
Circuit has “consistently supported nondisclosure of names or other information identifying
individuals appearing in law enforcement records, including investigators, suspects, witnesses,
and informants.”). Courts have credited the risk of harassment or retaliation as a legitimate
reason for redaction of the names of law enforcement officers under Exemption 7(C), although
courts often view those risks as more substantial when agents are involved in investigating
violent or high-profile crime. See, e.g., Garza v. U.S. Marshals Serv., No. CV 16-0976, 2018 WL
4680205, at *13 (D.D.C. Sept. 28, 2018) (“The Court agrees that disclosure regarding personal
information of law enforcement personnel may hinder the ability to conduct ongoing
investigations, may lead to unwarranted harassment, and may otherwise cause embarrassment
and be an invasion of privacy, as contemplated by the exemptions.”); Brown v. F.B.I., 873 F.
Supp. 2d 388, 404 (D.D.C. 2012) (“The risk of harassment and retaliation, in light of the
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potentially violent crimes that were being investigated, constitutes a legitimate privacy
interest.”); Lesar v. U.S. Dep’t of Justice, 636 F.2d 472 (D.C. Cir. 1980) (“[W]e find that in this
instance public identification of the individuals involved in the FBI’s investigation of Dr. [Martin
Luther] King would constitute an unwarranted invasion of their privacy in light of the
contemporary and controversial nature of the information.”).
RCFP maintains that the FBI has failed to articulate specific privacy interests that would
be harmed by release and relies only on conclusory assertions of potential harm. As set forth by
the D.C. Circuit, after the FOIA Improvement Act, “[a]gencies cannot rely on mere speculative
or abstract fears, or fear of embarrassment to withhold information. Nor may the government
meet its burden with generalized assertions. In that way, the foreseeable harm requirement
impose[s] an independent and meaningful burden on agencies.” Reps. Comm. for Freedom of the
Press v. FBI, 3 F.4th at 369 (cleaned up). Ultimately, the FBI has sufficiently and specifically
articulated the potential foreseeable harms that may result from disclosure of the identity of the
unknown SA. Although the First Seidel Declaration asserts largely speculative harms, the
Second Seidel Declaration is reasonably specific as to potential harms that may result from
disclosure. Compare Seidel Declaration ¶ 40 with Second Seidel Declaration ¶¶ 16-18. For
instance, the Second Seidel Declaration notes that FBI agents have a privacy interest in “being
free from unnecessary, unofficial questioning” and “may become targets of harassing inquiries
for unauthorized access to information.” Second Seidel Decl. ¶¶ 16-17. Moreover, the FBI states
that “publicity (adverse or otherwise) regarding a specific investigation to which they have been
assigned may seriously prejudice their effectiveness in conducting other investigations.” Id.
Those are specific harms and, when taken together with the more generalized harms stated in the
first declaration and considering the reasoned conclusions of other courts in this District, the FBI
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has articulated a cognizable privacy interests in the agent’s name. In sum, the unknown FBI
agent here – like the majority of rank and file FBI officials – has a legitimate privacy interest in
keeping their name redacted.
That legitimate privacy interest is balanced against the public’s interest in disclosure. In
general, the public interest in this case is high. The Supreme Court has held that
where there is a privacy interest protected by Exemption 7(C) and the public interest
being asserted is to show that responsible officials acted negligently or otherwise
improperly in the performance of their duties, the requester must establish more
than a bare suspicion in order to obtain disclosure. Rather, the requester must
produce evidence that would warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred.
Nat’l Archives & Recs. Admin., 541 U.S. at 174. The RCFP has introduced enough evidence to
warrant such a belief. Under the News Media Policy, before the FBI can question a journalist in
relation to newsgathering activities it must obtain approval from the Attorney General. As noted
previously, the FBI questioned Carmody but has no record of any consultation or authorization
request. Although the FBI asserts that the News Media Policy did not apply in this case because
the questioning related to execution of a state search warrant, that argument is rebutted by plain
text of the News Media Policy which applies to “questioning [a journalist] as to any offense that
he or she is suspected of having committed in the course of, or arising out of, newsgathering
activities.” 28 C.F.R. § 50.10(f)(1).
Moreover, the specter of government misconduct looms over the entire Carmody matter.
California state courts quashed the search warrants executed at Carmody’s home and office
because those warrants were improperly obtained in violation of a California shield law. See Pl.’s
Mem. at 5. Eventually, San Francisco approved a $369,000 settlement to compensate Carmody
for the illegal search and seizure. Id. Given those underlying circumstances and the fact that:
(1) the News Media Policy applies when federal agents question a journalist and requires
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consultation and authorization; (2) federal agents questioned Carmody; and (3) no record of
consultation or authorization exists, a reasonable person could conclude that the alleged
government impropriety occurred.
However, even if impropriety occurred, “[i]n order to demonstrate an overriding public
interest in disclosure… a plaintiff must show that the withheld information is necessary to ‘shed
any light on the [unlawful] conduct of any Government agency or official.’” Lewis v. U.S. Dep’t
of Justice, 609 F. Supp. 2d 80, 84 (D.D.C. 2009) (quoting U.S. Dep’t of Justice v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749, 772–73 (1989)). The withholding here is simply
a name of a singular rank-and-file FBI Agent – relatively little information. The RCFP does not
assert that this particular agent had a supervisory role, a history of violating the News Media
Policy, or that the agent had been previously disciplined for failure to abide by other DOJ
policies – circumstances that might give the public a greater interest in knowing the precise agent
involved. The alleged government misconduct at issue in the Carmody matter has come to light
(and may continue to be revealed after the relevant agencies fully search their records), and the
public can—and has—engaged in scrutiny of the FBI without knowing the identity of the
unknown agent. Taken as a whole, whether the public knows the names of this particular agent is
unlikely to greatly assist their right “to be informed about what their government is up to.” Nat’l
Ass’n of Home Builders v. Norton, 309 F.3d 26, 34 (D.C. Cir. 2002). RCFP has not met its
burden of articulating a sufficiently strong public interest in release of the in this specific agent’s
name to overcome his substantial privacy interest.
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VII. Conclusion
For the foregoing reasons, the Court will grant in part and deny in part Defendants’
Motion for Summary Judgment and grant in part and deny in part Plaintiff’s Cross-Motion for
Summary Judgment. An appropriate order accompanies this opinion.
November 8, 2021
________________________________
Thomas F. Hogan
SENIOR UNITED STATES DISTRICT JUDGE
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