Canning v. U.S. Department of Justice ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GEORGE CANNING,
Civil Action No. 11-1295{GK)
Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
Pro Se Plaintiff George Canning ("Plaintiff"), brings this
action against Defendant, Federal Bureau of Investigation ("FBI"
or "Defendant"), under the Freedom of Information Act ("FOIA"), 5
U.S.C. § 552. This matter is now before the Court on Defendant's
Motion for Summary Judgment ("Def.'s Mot.") [Dkt. No. 30-1] and
Plaintiff's Cross-Motion for Partial Summary Judgment ("Pl.' s
Mot. " ) [Dkt. No. 4 6] .
Upon consideration of the Motions, Oppositions, Replies, the
entire record herein, and for the reasons discussed below,
Defendant's Motion for Summary Judgment is granted in part and
denied in part and Plaintiff's Cross-Motion for Partial Summary
Judgment is granted in part and denied in part.
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I . BACKGROUND
A. September 29, 2007 FOIA Requests
On September 29, 2007, Plaintiff submitted a FOIA request to
the FBI Washington Field Office ("WFO"). He sought twelve serial
numbers and "any other serials containing references to or
information about Paul Goldstein, Lyndon H. LaRouche Jr., and/or
Jeffrey Steinberg" for items on a copy of a r~dacted FBI airtel
that Plaintiff enclosed with his request. 1 Am. Compl., Ex. D. Mr.
Canning attached privacy waivers from Mr. Goldstein, Mr. LaRouche,
and Mr. Steinberg to his request.
The same day, Mr. Canning submitted a separate FOIA request to
FBI headquarters ( "FBI HQ" ) seeking: ( 1) the same material he
requested from the WFO, (2) two documents declassified by the FBI
prior to an Interagency Security Classification Appeals Panel
( "ISCAP") review, and (3) any information regarding Mr." Goldstein,
Mr. LaRouche, and Mr. Steinberg in airtel WMFO 196B-1918-364. Id.,Ex. A. Defendant claims it has no record of receiving the FBI HQ
request. Second Hardy Deel. ~ 9 [Dkt. No. 30-3].
B. July 18, 2 009 FOIA Request
On July 18, 2009, Mr. Canning submitted a FOIA request to the
FBI HQ seeking documents declassified by ISCAP for three specific
1
In 2011, Defendant located an unredacted copy of the FBI airtel
referenced in Plaintiff's request and used this version to locate
responsive material. Second Hardy Deel. ~ 27.
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ISCAP appeals involving Plaintiff and Mr. Steinberg. Am. Compl.,
Ex. K. On December 22, 2009, Mr. Canning amended his request to
seek an additional document related to a declassification review
appeal filed by Mr. Steinberg. Id., Ex. P. Although the Government
claims it had no prior record of Plaintiff's July 18, .2009 request,
upon receiving Plaintiff's amendment, it opened a FOIA case and
released responsive material. Third Hardy Deel. ~ 10.
C. December 31, 2009 FOIA Request
On December 31, 2009, Mr. Canning submitted a FOIA request to
FBI HQ seeking information about suspected government surveillance
of Mr. LaRouche's presidential campaign. Am. Compl., Ex. R. Again,
the Government claims it had no official record of Plaintiff's
request. See Third Hardy Deel. ~ 5. Nonetheless, it referenced the
FOIA request appended to Plaintiff's Amended Complaint to search
for and process responsive records related to the request. Id. ~
6.
D. Procedural History
Plaintiff instituted this action on July 19, 2011. The
Government filed its pending Motion for Summary Judgment on
December 21, 2012. On May 9, 2013, Plaintiff filed his Cross-
Motion for Partial Summary Judgment. During the course of this
action, the Court denied multiple Motions by Plaintiff to obtain
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discovery. The Parties' Cross-Motions for Summary Judgment are now
fully briefed and ripe for review.
II. STANDARD OF REVIEW
FOIA cases are typically and appropriately decided on motions
for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of
Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C.
2011); Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp.
2d 83, 87 (D.D.C. 2009). "The standard governing a grant of summary
judgment in favor of an agency's claim that it has fully discharged
its disclosure obligations under FOIA is well-established ....
[T]he agency bears the burden of showing that there is no genuine
issue of material fact, even when the underlying facts are viewed
in the light most favorable to the requester." Weisberg v. U.S.
Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983); see also
Fed. R. Civ. P. 56(c).
The court may award summary judgment solely on the basis of
"[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 the Army, 920 F.2d 57, 68
(D.C. Cir. 1990).
If the agency withholds any material on the basis of statutory
exemptions, the agency's affidavits must also (1) "describe the
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documents and the justifications for nondisclosure with reasonably
specific detail;" and (2) "demonstrate that the information
withheld logically falls within the claimed exemption;" and must
not be (3) "controverted by either contrary evidence in the record
nor by evidence of agency bad faith." Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or
declarations are accorded "a presumption of good faith, which
cannot be rebutted by 'purely speculative claims about the
existence and discoverability of other documents.'" SafeCard
Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991)
(quoting Ground Saucer Watch, Inc. v. C.I.A., 692 F.2d 770, 771
(D.C. Cir. 1981)).
III. ANALYSIS
In response to Plaintiff's four FOIA requests, Defendant
withheld material under FOIA Exemptions 1, 3, 7(C), 7(D), and 7
(E). Plaintiff objects to the sufficiency of Defendant's search,
contests a number of the asserted FOIA Exemptions, and argues that
certain information should be disclosed because it exists in the
public domain. The Court will address each issue in turn.
A. Sufficiency of the Search Conducted by the FBI
The purpose of FOIA is to "facilitate public access to
Government documents" and "to pierce the veil of secrecy and to
open agency action to the light of public scrutiny." Mccutchen v.
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U.S. Dep't of Health & Human Servs., 30 F.3d 183, 184 (D.C. Cir.
1994) (internal quotations omitted). In responding to a FOIA
request, an agency is under an obligation to conduct a reasonable
search for responsive records. Oglesby, 920 F.2d at 68. To win
summary judgment on the adequacy of a search, the agency must
demonstrate beyond material doubt that its search was "reasonably
calculated to uncover all relevant documents." Weisberg, 705 F.2d
at 1351. An agency may demonstrate the reasonableness of its search
by submitting "[a] reasonably detailed affidavit." Oglesby, 920
F.2d at 68.
The Court "applies a 'reasonableness' test to determine the
'adequacy' of a search methodology, consistent with congressional
intent tilting the scale in favor of disclosure." Morley v. C.I.A.,
508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal quotation marks and
citation omitted) . To prevail in a summary judgment motion, an
agency is not required to search every system possible, but must
show that it made a good faith effort that would be reasonably
expected to produce all the requested information. See Steinberg
v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994).
Summary judgment for an agency is inappropriate only if the
agency's responses "raise serious doubts as to the completeness of
the search or are for some other reason unsatisfactory .... " Perry
v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982).
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In this case, the Court concludes that, as to each of
Plaintiff's FOIA requests, the FBI's search was reasonably
calculated to uncover the relevant documents. Three declarations
submitted by David M. Hardy, the Section Chief of the
Record/Information Dissemination Section ("RIDS") I Records
Management Division of the FBI, describe, in extensive detail,
Defendant's search for documents responsive to Plaintiff's
requests. See Second Hardy Deel.; Third Hardy Deel.; Fourth Hardy
Deel. [Dkt. No. 64-1].
With regard to the September 29, 2007 request to the
Washington Field Office, the Government initially located and
processed the files visible on the partially redacted airtel that
Plaintiff attached to his request. Second Hardy Deel. ~ 43. The
Government supplemented its processing efforts with search terms
targeted to retrieve responsive information. Id. Concerning the
redacted serial numbers that Plaintiff requested, Defendant
searched for and found an unredacted version of the airtel, re-
processed the clean version for release, and then located the
specific files that Plaintiff requested. Id. ~ 44. The Government
also deployed targeted search terms to search its electronic
surveillance ("ELSUR") indices for responsive material. 2 Id. ~ 47.
2
Defendant's ELSUR search terms included: "Executive Intelligence
Review," "EIR," "Foreign Police Cooperation," "Goldstein, Paul Neil,"
"LaRouche, Lyndon Hermyle," "Steinberg, Jeffrey," and the date of
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The Government adopted a similar approach with regard to
Plaintiff's July 18, 2009 and December 31, 2009 requests. Although
Mr. Canning had originally requested a blacked-out file in the FBI
search slip that he attached to his December 31, 2009 request, the
Government located an unredacted version in its files and processed
the corresponding serial numbers for release. Third Hardy Deel. ~
28. Defendant also conducted ELSUR searches using targeted search
parameters. By coordinating with its RIDS Department Review
Committee liaison, the Government was able to locate all of the
material requested by Plaintiff in his July 18, 2009 request. Id.~ 30.
The Court finds that the Government's efforts as to these
FOIA requests were reasonably calculated to uncover all relevant
documents and· therefore adequate. See Chambers v. U.S. Dep't of
Interior, 568 F.3d 998, 1005-06 (D.C. Cir. 2009). The Hardy
declarations identify, with reasonable specificity, the "system of
records searched and the . geographic location of those files."
Perry, 684 F.2d at 127. See Weisberg v. U.S. Dep't of Justice, 627
F.2d 365, 370 (D.C. Cir. 1980) (agency affidavit must denote which
files were searched and reflect a systematic approach to document
birth and social security number for the targeted individuals. Second
Hardy Deel. ~ 47.
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location in order to enable the appellant to challenge the
procedures utilized) .
Mr. Canning does not appear to dispute that the above measures
were adequate to locate records responsive to his September 29,
2007 request to the Washington Field Office and his two 2009
requests. Instead, Plaintiff principally challenges the fact that
Defendant did not conduct an independent search of the FBI HQ's
files in response to his September 29, 2007 request to the FBI HQ.
Pl. 's Mot. at 6. According to Plaintiff, Defendant blatantly
ignored this request, disregarding Plaintiff's concern that
documents located in the FBI HQ might materially differ from the
records stored in the Field Office. Id. at 8. In response, the
Government asserts that since Field Office files are copied to the
FBI HQ, an independent search of the FBI HQ for the same materials
would have been needlessly redundant. Def.'s Reply at 4 [Dkt. No.
64] .
The Court agrees with the Government. It provided a reasonably
detailed affidavit clarifying why it only searched its Field
Office, and why a search of the FBI Headquarters for the same
documents would be redundant and not likely to result in the
location of additional responsive records. In the affidavit, the
Government clearly explained the process in which each Field Off ice
copied the contents of its files to the corresponding HQ division.
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Second Hardy Deel. ~ 46. Unsatisfied, Mr. Canning claims that some
of the HQ documents may not be "in fact identical" because they
might "include[] handwritten notations and ink-stamps" that could
reveal additional information. Pl.' s Reply at 2 (emphasis in
original). Plaintiff's purely speculative claims about the
existence and discoverability of other documents do not overcome
the ~resumption of good faith afforded to the agency's
declarations. See Leopold v. Nat'l Sec. Agency, 118 F. Supp. 3d
302, 308 (D.D.C. 2015) (deferring to agency's declaration that
explained why a search of an additional government office would be
redundant) .
Nonetheless, Mr. Canning correctly points out that his FBI HQ
request is not identical to the Field Office request. The FBI HQ
request contains two elements absent from the Field Office request:
(1) specific documents declassified by the FBI prior to the ISCAP
review, and ( 2) any information regarding Mr. Goldstein, Mr.
LaRouche, and Mr. Steinberg in airtel WMFO 196B-1918-364. See Am.
Compl, Exs. A, D.
Despite initially having no record of Plaintiff's FBI HQ
request, Defendant searched for the requested information and
released responsive material in response to Plaintiff's Cross-
Motion for Summary Judgment. Fourth Hardy Deel. ~ 12. Defendant
not only released an unredacted copy of airtel WMFO 196B-1918-364
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but also searched for the specific documents declassified by the
FBI prior to the ISCAP review, as requested by Mr. Canning. Second
Hardy Deel. ~ 16 n.7; Fourth Hardy Deel. ~ 12. Defendant initiated
a manual search of available files, searched FOIA files indexed to
Plaintiff, and ran targeted key word searches across its internal
database using the applicable ISCAP serial number. Fourth Hardy
Deel. ~ 12. Plaintiff, however, argues that Defendant should have
used additional search terms, including the FBI reference number
and the DOJ Office of Information and Privacy's reference number.
Pl.'s Reply at 3 [Dkt. No. 65].
Plaintiff's argument is not convincing. "A FOIA petitioner
cannot dictate the search terms for his or her FOIA request. /1
Bigwood v. U.S. Dep't of Def., 132 F. Supp. 3d 124, 140 (D.D.C.
2015). Where, as here, the agency's search terms are reasonable,
"the Court will not second guess the agency regarding whether other
search terms might have been superior. /1
Liberation Newspaper v.
U.S. Dep't of State, 80 F. Supp. 3d 137, 146 (D.D.C. 2015).
Significantly, Mr. Canning does not explain why the search
terms he proposes are more likely to uncover responsive information
than the search terms the Government used. Plaintiff requested
documents related to an ISCAP review and a search using the
corresponding ISCAP serial number, which the Government used, is
a logical way to target that information. The Court finds
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Defendant's search methods to be reasonable and, absent a showing
of bad faith, the Court will not second guess Defendant's search
process.
Because the Court finds that Defendant has adequately
explained its search protocols in multiple declarations that are
entitled to a presumption of good faith, and that the protocols
used were reasonable, Defendant's motion for summary judgment on
this issue is granted.
B. Claimed Exemptions
Plaintiff objects to Defendant's withholding of certain
information based on various statutory exemptions. FOIA "requires
agencies to comply with requests to make their records available
to the public, unless the requested records fall within one or
more of nine categories of exempt material." Oglesby v. U.S. Dep't
of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (citing 5 U.S.C.
§ 552(a), (b)). An agency that withholds information pursuant to
a FOIA exemption bears the burden of justifying its decision,
Petroleum Info. Corp. v. U.S. Dep't of the Interior, 976 F.2d 1429,
1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552 (a) (4) (B)), and must
submit an index of all materials withheld. Vaughn v. Rosen, 484
F.2d 820, 827-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977(1974). In determining whether an agency has properly withheld
requested documents under a FOIA exemption, the district court
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conducts a de novo review of the agency's decision. 5 U.S. C. §
552(a) (4) (B).
As with claims of inadequacy of the search, the court may
award summary judgment as to withheld records solely on the basis
of information provided in affidavits or declarations when they
( 1) "describe the documents and the justifications for
nondisclosure with reasonably specific detail;" (2) "demonstrate
that the information withheld logically falls within the claimed
exemption;" and (3) "are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith. "
Military Audit Project, 656 F.2d at 738. As noted above, such
affidavits or declarations are accorded "a presumption of good
faith, which cannot be rebutted by 'purely speculative claims about
the existence and discoverability of other documents.'" SafeCard
Servs., 926 F.2d at 1200 (quoting Ground Saucer Watch, 692 F.2d at
771).
1. Exemption 1
FOIA Exemption 1 precludes disclosure of documents that are
"(A) specifically authorized under criteria established by an
Exe cu ti ve 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).
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As with all of FOIA's exemptions, the burden of proof lies
with the Government to show proper application of Exemption 1. 5
U.S.C. § 552(a) (4) (B). It is undisputed that the requirements for
classifying information relevant to Mr. Canning's requests are
contained in Executive Order 13526 which went into full effect in
June 2010. Executive Order 13526 provides that information may be
classified if:
(1) an original classification authority is
classifying the information;
( 2) the information is owned by, produced by or
for, or is under the control of the United States
Government;
(3) the information falls within one or more of the
categories of information listed in section 1.4 of
this order; and
(4) the original classification authority
determines that the unauthorized disclosure of the
information reasonably could be expected to result
in damage to the national security, which includes
defense against transnational terrorism, and the
original classification authority is able to
identify or describe the damage.
Exec. Order No. 13526, 75 FR 707, 707 (Dec. 29, 2009).
In this case, the Government has asserted Exemption 1 over
certain classified material, including the identities of covert
CIA employees and the location of covert CIA field installations.
See Def. 's Mot. at 7, 32. Mr. Canning rests his Exemption 1
challenge on a claim that Defendant continu~s to assert Exemption
1 over material that has been previously declassified by ISCAP.
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Pl.'s Mot. at 12. He identifies a specific document, a memorandum
authored by Allen Mccreight, to demonstrate that Defendant made
Exemption 1 withholdings over portions of the document despite
ISCAP's declassification. Id. at 23.
Al though Mr. Canning may be correct that the Government cannot
withhold dee lass if ied information under Exemption 1, the Court
need not examine this issue further because in its Reply Motion,
it agreed to release the portions of the Mccreight memorandum that
were declassified by ISCAP. See Def.' s Reply at 23. With this
disclosure, the Government further declared that it reviewed the
material and released all of the declassified information unless
another exemption applies, see Fourth Hardy Deel. ~ 25, an
assertion that is entitled to a presumption of good faith. Negley
v. F.B.I., 169 Fed. Appx. 591, 594 (D.C. Cir. 2006). In the absence
of a showing of bad faith, the Court will defer to Defendant's
declaration. See Ctr. for Auto Safety v. E.P.A., 731 F.2d 16, 23
(D.C. Cir. 1984) ("This Circuit has repeatedly held that 'when the
agency meets its burden [under the FOIA] by means of affidavits,
in camera review is neither necessary nor appropriate").
Plaintiff also objects to the adequacy of the FBI's and
CIA's declassification reviews. Pl.'s Mot. at 24. He points to
Defendant's supporting affidavits, noting that they do not
specifically state: (1) that Defendant weighed the public
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interest in disclosure against the national security interest;
or (2) that Defendant submitted the classified intelligence
source or method information to the Director of National
Intelligence for declassification review. Id. at 25-26.
Plaintiff therefore "infers [these steps] were not performed."
Id.Plaintiff's argument is unpersuasive for two reasons. First,
Executive Order 13526 expressly indicates that the determination
of whether the "exceptional case" exists in which "the need to
protect [classified] information may be outweighed by the public
interest in disclosure" is a matter of agency discretion. Exec.
Order 13526 §3.l(d).
Second, Executive Order 13526 does not require Defendant to
submit intelligence information to the Director of National
Intelligence for declassification review as a matter of course.
Instead, the Order merely states that the Director may declassify
information upon consultation with the relevant department. See
Exec. Order No. 13526 §3 .1 (c) . Indeed, Mr. Canning appears to
concede this point. See Pl.'s Mot. at 31 ("[F]rom ... the word 'may'
in the EO 13526 text, the DNI has discretion not to exercise his
§3.l(C) authority - i.e. it is not a reviewable decision"). Finding
that the withheld information was classified in accordance with
the applicable procedural and administrative requirements of Exec.
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Order 13526, the Court concludes that Defendant properly withheld
the challenged classified material under Exemption 1.
While processing Plaintiff's FOIA requests, the Government
identified documents that originated with other government
agencies and, pursuant to 28 C.F.R. § 16.4, referred those
documents to the appropriate agency for consultation. Def.'s Mot.
at 16. The CIA and U.S. Army Intelligence and Security Command
("USAINSCOM") have also withheld classified material containing
the identities of covert CIA employees, the location of covert CIA
field installations, and other intelligence activities, sources,
and methods under Exemption 1. Id. at 16-17, 22. The CIA and
USAINCOM declare, with reasonable specificity, that the disclosure
of such classified information would damage national security.
Dorris Deel. `` 6-8 (Dkt. No. 30-13); Lutz Deel. `` 7-18 (Dkt. No.
30-14). Mr. Canning does not refute the CIA's or USAINCOM's
statements or identify contradictory evidence in the record.
Accordingly, the Court will defer to the detailed affidavits which
indicate that the withheld information comports with the
substantive and procedural requirements of Exec. Order 13526. Id.
2. Exemption 3
The Government contends that the CIA and the State Department
properly withheld information pursuant to Exemption 3. Def.'s Mot.
at 17-19. FOIA Exemption 3 covers records which are "specifically
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exempted from disclosure by statute . . . provided that such statute
[requires withholding] in such a manner as to leave no discretion
on the issue, or ... establishes ~articular criteria for withholding
or refers to particular types of matters to be withheld." 5 U.S.C.
§ 552 (b) (3); see also Senate of Puerto Rico v. U.S. Dep't of
Justice, 823 F. 2d 574, 582 (D. C. Cir. 1987) . To satisfy FOIA' s
requirements, Defendant "need only show that the statute claimed
is one of exemption as contemplated by Exemption 3 and that the
withheld material falls within the statute." Fitzgibbon v. C.I.A.,
911 F.2d 755, 761-62 (D.C. Cir. 1990).
The CIA relies on two statutes - Section 102(A) (i) (1) of the
National Security Act of 1947 ("NSA"), 50 U.S.C. § 403-1, as
amended, and Section 6 of the Central Intelligence Agency Act of
1949 ("CIA Act"), 50 U.S.C. § 403(g), as amended - to justify non-
disclosure of the withheld material. According to the CIA, the
release of the withheld material would reveal the identities of
covert CIA employees and the existence and location of covert CIA
field installations. Lutz Deel. ~ 20. The State Department points
to Section 222(f) of the Immigration and Nationality Act ("INA")
to withhold an agency telegram dated September 5, 1985 which
pertains to the issuance of visas for three Soviet diplomats on a
temporary duty assignment at the Soviet Embassy in Washington,
D.C. Walter Deel. `` 5-6 [Dkt. No. 30-11]
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As a threshold matter, Plaintiff does not dispute that the
NSA, CIA Act and INA qualify as exemption statutes. Nor could he,
considering the well-settled case law to the contrary. See, e.g.,
Fitzgibbon, 911 F.2d at 761 ("There is thus no doubt that section
403 (d) (3) [now NSA section 403-1 (i) (1)] is a proper exemption
statute under exemption 3. 11
) ; Nat' l Sec. Archive Fund, Inc. v.
C.I.A., 402 F. Supp. 2d 211, 220 (D.D.C. 2005) (recognizing that
section 6 of the CIA Act exempts certain material from disclosure);
Medina-Hincapie v. U.S. Dep't of State, 700 F.2d 737, 741 (D.C.
Cir. 1983) (concluding that INA section 222 (f) qualifies as an
·I
I
'
exemption statute) .
The CIA and State Department have adequately demonstrated
that the withheld material falls within the exemption statutes.
Section 102 (A) (i) (1) of the NSA permits the CIA to withhold
information relating to "intelligent sources and methods," 50
U.S.C. § 403-l(i) (1), and Section 6 of the CIA Act protects against
the disclosure of the identities of CIA employees. 503 U.S.C. §
403(g). The CIA, in its declaration, explains that the withheld
material contains the identities of covert CIA employees and the
existence and location of covert CIA field installations. Lutz
Deel. ~ 20. Similarly, Section 222(f) of the INA protects agency
records "pertaining to the issuance or refusal of visas," 8 U.S.C.
§ 1202 (f), and the material withheld by the State Department
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concerns visa issuances for three foreign nationals. Walter Deel.
~ 8. Plaintiff does not challenge the agencies' analysis or
conclusion. Accordingly, the Court concludes that the CIA and State
Department properly withheld this material under Exemption 3.
3. Exemption 7{C)
FOIA Exemption 7 (C) protects information compiled for law
enforcement purposes to the extent that disclosure "could
reasonably be expected to constitute an unwarranted invasion of
personal privacy." 5 U.S.C. § 552(b) (7) (C). In determining whether
Exemption 7(C) applies, the Court must balance the public interest
in disclosure with the privacy interests implicated by the release
of the material. Computer Prof'ls for Soc. Responsibility v. U.S.
Secret Serv., 72 F.3d 897, 904 (D.C. Cir. 1996). Suspects,
witnesses, investigators, and third parties all have substantial
privacy interests that are implicated by the public release of law
enforcement investigative materials. Id.; Davis v. U.S. Dep't of
Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992). Courts recognize
that the disclosure of such material may lead to embarrassment and
physical or reputational harm to these individuals. See SafeCard,
926 F.2d at 1205.
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." Davis,
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968 F.2d at 1282 (internal quotations omitted). Whether disclosure
of private information is warranted under Exemption 7(C) turns on
whether the information "sheds light on an agency's performance of
its statutory duties." u. s. Dep' t of Justice v. Reporters Comm.
for Freedom of the Press, 489 U.S. 749, 773 (1989).
Thus, the requested information must shed light on the
agency's own conduct and not merely on the subject matter of the
underlying law enforcement investigation. Id. Our Court of Appeals
has held "categorically that, unless access to the names and
addresses of private individuals appearing in files within the
ambit of Exemption 7(C) is necessary in order to confirm or refute
compelling evidence that the agency is engaged.in illegal activity,
such information is exempt from disclosure." SafeCard, 926 F.2d at
1206.
In this case, the Government has relied on Exemption 7(C) to
protect the names and/or identifying information of: 1) third
parties who were interviewed by the FBI during the course of
investigations; ( 2) third parties mentioned in the documents in
the released files; (3) FBI Special Agents and support personnel
who were responsible for conducting, supervising, and/or
maintaining the investigative activities reported in the
documents; and (4) third parties who are of investigative interest
'
to the FBI and/or other law enforcement agencies. Def.'s Mot. at
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10-11, 29. According to the Government, the release of this
information could subject the relevant individuals to harassment,
embarrassment, intimidation, or legal, economic or physical harm.
Id. at 11.
The Parties do not dispute that the records at issue were
compiled for law enforcement purposes. Instead, Plaintiff and
Defendant principally disagree on whether the public interest in
disclosure outweighs the privacy interests implicated by the
release of the material. According to Mr. Canning, the public
interest in the withheld material is high, "certainly ris[ing] to
the same level as Watergate" because the withheld material, he
suspects, may show attempts made by the federal government to
penetrate the presidential campaign of Lyndon LaRouche. Pl.'s Mot.
at 27-33. The Government argues that no public interest would be
furthered by the disclosure of the withheld information. Def.'s
Mot. at 12.
The Government's withholding of the names of FBI personnel
and third parties that are interviewed by the FBI, who are of
interest to the Bureau, or mentioned in internal documents, clearly
protects legitimate privacy interests. These individuals have a
strong privacy interest because of the potential for harassment.
Martin v. U.S. Dep't of Justice, 488 F.3d 446, 457 (D.C. Cir. 2007)
("[T]hird parties who may be mentioned in investigatory files and
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witnesses and informants who provide information during the course
of an investigation have an obvious and substantial privacy
interest in their information.") (internal quotation marks
omitted); Dunkelberger v. U.S. Dep't of Justice, 906 F.2d 779, 781
(D.C. Cir. 1990) ("Exemption 7(C) takes particular note of the
'strong interest' of individuals, whether they be suspects,
witnesses, or investigators, in not being associated unwarrantedly
with alleged criminal activity.") (internal quotation marks
omitted); Fitzgibbon, 911 F.2d at 768.
Mr. Canning contends that there is a strong public interest
in the release of the names of these individuals because disclosure
"may indicate whether the surveillance was of high-level officials
(which may indicate attempts to suppress a campaign issue), or
rank-and-file workers in La Rouche' s presidential campaign [.]"
Pl.'s Mot. at 33. As the FOIA requester, Plaintiff bears the burden
of asserting a countervailing public interest in disclosure. Boyd
v. Exec. Office for U.S. Attorneys, 87 F. Supp. 3d 58, 72-73
(D.D.C. 20l5). Here, Mr. Canning offers nothing more than his own
speculation to support his claim that government surveillance of
Mr. LaRouche's presidential campaign took place. Such speculation
does not constitute "evidence that would warrant a belief by a
reasonable person that the alleged Government impropriety might
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have occurred." Id. at 82 (upholding Exemption 7(C) claims where
plaintiff offered only speculation as to government misconduct) .
Mr. Canning further argues that disclosure of the information
withheld under Exemption 7(C) is warranted because the Government
did not indicate if it attempted to determine whether the
individuals whose identifying information is being withheld are
living or deceased. Pl.'s Mot. at 33-35. Plaintiff's argument has
no validity. In a declaration supporting its Opposition to
Plaintiff's Motion for Partial Summary Judgment, Defendant
explains that the FBI uses a "100-year rule" to discern the dates
of birth or deaths of individuals involved in an investigation.
Fourth Hardy Deel. ~ 16. Under this rule, the FBI presumes dead
(and releases the names of) individuals born more than 100 years
ago. 3 Id. The Court of Appeals has considered the FBI's use of this
method to determine the life and death of individual_s mentioned in
its withholdings and found it to be reasonable. See Schrecker v.
U.S. Dep't of Justice, 349 F.3d 657, 665 (D.C. Cir. 2003) . 4
3
If the FBI is unable to determine the life or death status of an
individual using this method, the agency presumes the individual to be
alive and withholds any names and/or identifying information. Fourth
Hardy Deel. ~ 16.
4
Plaintiff notes that Defendant redacted the name of Mitchell Werbel,
a deceased individual. Pl.'s Mot. at 34. In response to Plaintiff's
concern, Defendant released each instance where Mr. Werbel's name was
mentioned in responsive records. Def.'s Reply at 17. Plaintiff has not
indicated that Defendant's actions inadequately addressed his concern.
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The Government also contends that U.S. Customs and Border
Protection ("CBP") properly withheld the signature of a government
employee from disclosure pursuant to Exemption 7(C). Def.'s Mot.
at 19. The Court agrees. As explained above, the employee retains
a privacy interest in his or her identity and Plaintiff has not
offered any argument that a countervailing public interest
warrants disclosure.
For these reasons, the Court finds that the Government
properly withheld the challenged material under Exemption 7(C) . 5
4. Exemption 7(D}
FOIA Exemption (7) (D) allows an agency to exempt records or
information compiled for law enforcement purposes where such
information "could reasonably be expected to disclose the identity
of a confidential source which furnished information on a
confidential basis." 5 U.S.C. § 552 (b) (7) (D). To invoke this
exemption, an agency must show either that the source spoke only
under express assurances of confidentiality or that the
circumstances support an inference of confidentiality. U.S. Dep't
of Justice v. Landano, 508 U.S. 165, 174 (1993).
5
Defendant also generally asserts Exemption 6 in conjunction with its
Exemption 7(C) claims. Because the. Court has already concluded that
Defendant has properly withheld the same information under Exemption
7(C), it need not examine Exemption 6. See Roth v. U.S. Dep't of
Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011).
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The Government has asserted Exemption 7(D) over: (1)
confidential informant file numbers; (2) confidential source
symbol numbers and FBI code names; (3) certain information provided
by confidential source symbol numbered informants who reported
information to the FBI on a regular basis under express assurances
of confidentiality; (4) identities of and information provided by
foreign law enforcement agencies under an implied assurance of
confidentiality; (5) identities of and information provided by
foreign law enforcement agencies under an express assurance of
confidentiality; ( 6) names, identifying information, and
information provided by third parties to the FBI under an implied
assurance of confidentiality; and (7) the name or identifying
information of a third party who assisted the FBI under an express
assurance of confidentiality. Def.'s Mot. at 14, 30.
Mr. Canning initially moved for summary judgment regarding
only the information for which the Government asserts an implied
confidentiality exemption where the sources are not affiliated
with law enforcement agencies. See Pl.'s Mot. at 36. However, after
the Government more fully explained the basis for its Exemption
7 (D) assertions in its Reply Motion, Mr. Canning withdrew his
challenge over the documents being withheld under an implied
promise of confidentiality. Pl.'s Reply at 6-7 ("Plaintiff
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concedes defendant has now made the requisite factual showing, and
this element of plaintiff's motion is no longer appropriate.").
The Court agrees with the Government that disclosure of the
withheld material could potentially lead to the identification of
confidential sources, endanger informants, affect the cooperation
of future FBI informants, and diminish cooperation between the FBI
and other law enforcement authorities. Accordingly, the Court
finds that the Government properly withheld this material under
Exemption .7 (D) .
5. Exemption 7{E)
FOIA Exemption (7) (E) provides for the withholding of records
or information compiled for law enforcement purposes to the extent
that disclosure of such information could reasonably be expected
to
disclose techniques and procedures for law
enforcement investigations or prosecutions or would
disclose guidelines for law enforcement
investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention
of the law.
5 U.S.. C. § 552 (b) (7) (E). This exemption protects from disclosure
only those law enforcement techniques and procedures that are not
well known to the public. National Sec. Archive v. F.B.I., 759 F.
Supp. 872, 885 (D.D.C. 1991); Albuquerque Pub. co. v. U.S. Dep't
of Justice, 726 F. Supp. 851, 857 (D.D.C. 1989). Exemption 7(E) 's
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requirement that disclosure could risk circumvention of the law
"sets a relatively low bar for the agency to justify withholding."
Blackwell v. F.B.I., 646 F.3d 37, 42 (D.C. Cir. 2011). "To clear
that relatively .low bar, an agency must demonstrate only that
release of a document might increase the risk that a law will be
violated or that past violators will escape legal consequences."
Pub. Emps. for Envtl. Responsibility v. U.S. Section, 740 F.3d
195, 205 (D.C. ·cir. 2014).
The Government invokes Exemption 7 (E) to withhold symbol
source numbers, 6 information concerning electronic monitoring
conducted by the FBI, internal FBI code names, and information
regarding law enforcement techniques that the FBI uses to obtain
intelligence in its investigations. See Second Hardy Deel `` 104-
05; Third Hardy Deel. `` 81-85. According to the Government, the
release of this information would, inter alia, hamper the FBI's
law enforcement efforts to detect and apprehend criminals,
compromise means of collecting intelligence information, and
enable criminal targets to better circumvent law enforcement by
developing countermeasures. Id. Plaintiff argues that Defendant
has not adequately shown that the underlying techniques are not
already known to the general public. Pl.'s Mot. at 39.
6 Symbol source numbers are designators for specific methods used to
obtain invaluable investigative intelligence information. Third Hardy
Deel. ~ 81.
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As with the Government's Exemption 7 (D) withholdings, the
Parties do not dispute that the information the Goverment has
withheld under Exemption 7 (E) was compiled for law enforcement
purposes. The categories of information that Defendant has
withheld here - e.g. , FBI code names, symbol methodology, and
electronic monitoring techniques - fall squarely within the type
of material envisioned by FOIA Exemption 7(E). The Court of Appeals
has explained that the government's burden under Exemption 7(E) is
to "demonstrate[] logically how the release of [the requested]
information might create a risk of circumvention of the law," and
the Government's affidavits which outline, in detail, the
anticipated harm that would follow should the material be
disclosed, adequately meet this burden. See Mayer Brown LLP v.
I.R.S., 562 F.3d 1190, 1194 (D.C. Cir. 2009).
Relying heavily on broad descriptions of law enforcement
techniques that he has witnessed in movies and on television, Mr.
Canning claims that the withheld information likely concerns well-
known techniques such as consensual monitoring and wiretaps. Pl.'s
Mot. at 41-42. Plaintiff's assertions, however, do not indicate
that the specific material withheld in this case is in the public
domain. Nonetheless, even if certain aspects of the techniques
described in the withheld material are publically known, "even
commonly known procedures may be protected from disclosure if the
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.
disclosure could reduce or nullify their effectiveness." Am.
Immigration Lawyers Ass'n v. U.S. Dep't of Homeland Sec., 852 F.
Supp. 2d 66, 78 (D.D.C. 2012). Because the Court is persuaded that
the disclosure of this material could reasonably be expected to
risk circumvention of the law, it finds that Defendant has properly
withheld this material under Exemption 7(E).
The Government also argues that the CBP properly withheld
navigation codes from a CBP records system database ("TECS") under
Exemption 7 (E) because disclosure of the codes, which expose
precise keystrokes and navigation instructions, would compromise
the integrity of the CBP law enforcement database. Def.'s Mot. at
21. Plaintiff does not challenge Defendant's assertion. In its
declaration, the CBP adequately explains how disclosure of this
information could reasonably be expected to risk circumvention of
the law. See Suzuki Deel. `` 20-23 [Dkt. No. 30-12]. The Court
therefore concludes that Defendant properly withheld this
information under Exemption 7(E) . 7
7
Indeed, other courts in this District have reached the same result.
See, e.g., Strunk v. U.S. Dep't of State, 905 F. Supp. 2d 142, 148
(D.D.C. 2012) (concluding that CBP's decision to withhold TECS-related
information under Exemption 7(E) was proper); Skinner v. U.S. Dep't of
Justice, 893 F. Supp. 2d 109, 112-13 (D.D.C. 2012) (finding the
withholding of TECS internal computer access codes to be justified);
Miller v. U.S. Dep't of Justice, 872 F. Supp. 2d 12, 29 (D.D.C. 2012)
(same); McRae v. U.S. Dep't of Justice, 869 F. Supp. 2d 151, 169
(D.D.C. 2012) (same).
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C. Public Domain Material
Mr. Canning raises two public domain arguments, asserting
that the Government cannot withhold certain information from
disclosure because that information is already publically
available.
First, Mr. Canning contends that the Government has withheld
the names and identifying information of two indi victuals, Fred
Lewis and Gary Howard, despite having previously identified them
as sources, in response to Plaintiff's July 2009 FOIA request. See
Pl.'s Mot. at 19. Because some information about these two
individuals has already been disclosed, he argues, the Government
"cannot properly withhold any information to shield the fact that
[Lewis and Howard] provided information." Id. (emphasis in
original) .
Second, Mr. Canning alleges that certain information that the
Government has withheld in response to his July 2009 request (the
"Boston ELSUR Searches" documents) was previously released to a
different FOIA requester, Mr. Steinberg. Id. at 20. For example,
Mr. Canning claims Defendant released to Mr. Steinberg the name of
the co-prosecutor in a Boston case regardl.ing Mr. LaRouche yet
withheld the same information in response to Plaintiff's request.
Id. In response, the Government contends that Plaintiff has not
met his burden to identify specific information in the public
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domain that corresponds to the withheld material. Def.'s Reply at
13.
Mr. Canning's first argument is persuasive. The Court of
Appeals has held that "the government cannot rely on an otherwise
valid exemption claim to justify withholding information that has
been 'officially acknowledged' or is in the 'public domain.'"
Davis, 968 F.2d at 1279 (quoting Afshar v. U.S. Dep't of State,
702 F.2d 1123, 1130-34 (D.C. Cir. 1983) and Fitzgibbon, 911 F.2d
at 765-66) . In asserting a claim of prior disclosure, plaintiffs
bear the burden of production to "point[] to specific information
in the public domain that appears to duplicate that being
withheld[.]" Id. Mr. Canning has met his burden here. He has
identified specific material that has been officially disclosed to
him by the Government - i.e., identifying information concerning
Mr. Lewis and Mr. Howard - which duplicates the information the
Government continues to withhold. 8 Accordingly, the Court concludes
that Mr. Canning is entitled to this information.
Turning to Mr. Canning's second argument, the Court reaches
the same conclusion. Whereas the Government released the
identifying information concerning Mr. Lewis and Mr. Howard in
8 Contrary to the Government's assertion, Mr. Canning does not request
all information that the Government has in its possession concerning
Mr. Lewis and Mr. Howard. Mr. Canning instead requests the withheld
material demonstrating that these individuals provided information to
the Government. Pl.'s Mot. at 19.
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response to Mr. Canning's own FOIA request, Mr. Canning has
demonstrated that the Government previously released the Boston
ELSUR information in response to Mr. Steinberg's FOIA request.
Fifth Canning Deel., Ex. C. The Government has not explained why
the identity of the FOIA requester should affect the Court's
analysis. In both instances, the material has been previously
released to the public, a fact that warrants the disclosure of
withheld information in this case. Accordingly, the Government
shall disclose to Mr. Canning: ( 1) the names and identifying
information concerning Mr. Lewis and Mr. Howard in the withheld
material, and (2) the information contained in the Boston ELSUR
documents that the Government previously disclosed to Mr.
Steinberg but continues to withhold from Mr. Canning.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary
Judgment shall be granted in part and denied in part and
Plaintiff's Cross-Motion for Partial Summary Judgment shall be
granted in part and denied in part. An Order shall accompany this
Memorandum Opinion.
June 5, 2017 Gla~S~/_~
United States District Judge
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