Message
×
loading..

Reporters Committee for Freedom of the Press v. Federal Bureau of Investigation ( 2022 )


Menu:
  •                            UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    REPORTERS COMMITTEE FOR          :
    FREEDOM OF THE PRESS,            :
    :
    Plaintiff,               :                      Civil Action No.:      17-1701 (RC)
    :
    v.                       :                      Re Document Nos.:      64, 65
    :
    FEDERAL BUREAU OF INVESTIGATION, :
    et al.,                          :
    :
    Defendants.              :
    MEMORANDUM OPINION
    GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
    JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF’S CROSS-MOTION FOR
    PARTIAL SUMMARY JUDGMENT
    I. INTRODUCTION
    This case arises out of a Freedom of Information Act (“FOIA”) dispute between Plaintiff
    Reporters Committee for Freedom of the Press (“the Committee”) and Defendants Federal
    Bureau of Investigation (“FBI”) and United States Department of Justice (“DOJ”). In 2017, the
    Committee asked the FBI for records relating to the FBI’s impersonation of documentary
    filmmakers and film crews. The FBI has since disclosed some records but withheld others under
    various FOIA exemptions. The parties’ dispute now centers solely on 54 pages of records. With
    respect to these records, the FBI withheld many pages in part or full on the basis of Exemptions
    5, 6, 7(C), 7(D), and 7(E). The FBI has it mostly right but will need to disclose some additional
    information. For the reasons described below, the Court will grant in part and deny in part both
    parties’ motions for partial summary judgment.
    II. BACKGROUND
    The Court will draw the factual background of this case from its previous two opinions.
    See Reps. Comm. for Freedom of Press v. FBI (“Reporters I”), 
    369 F. Supp. 3d 212
    , 215–217
    (D.D.C. 2019); Reps. Comm. for Freedom of the Press v. FBI (“Reporters II”), 
    548 F. Supp. 3d 185
    , 191 (D.D.C. 2021). In brief, the Committee’s lawsuit has its origins in a series of news
    events that brought public attention to law enforcement’s practice of impersonating journalists
    and documentary filmmakers. The most prominent of those events involved an armed standoff
    between federal law enforcement officers and Nevada cattle rancher Cliven Bundy. See
    Reporters I, 369 F. Supp. 3d at 216. During the subsequent prosecution of Bundy and his
    supporters, the federal government revealed that FBI agents posed as documentary filmmakers to
    lure suspects into speaking with them. Id. at 216–17. Media coverage of the Bureau’s
    undercover operation—called “Operation Longbow”—prompted the Committee to request
    information about the filmmaker impersonation tactic. See id. at 217. Its FOIA request sought
    eight kinds of records. See Defs.’ Statement of Material Facts as to Which There Is No Genuine
    Issue ¶ 1, ECF No. 47-2. Items 1 through 5 of the request asked for records pertaining to the
    Bundy standoff. Id. Items 6 through 8 were framed more broadly to include the FBI’s
    undercover documentary activities that were not limited to the Bundy standoff. Id.
    In Reporters II, the Court addressed the parties’ cross-motions for partial summary
    judgment regarding the FBI’s handling of responsive records to Item 6–8. 548 F. Supp. 3d at
    191. It held that the FBI had adequately justified its withholdings except for one group of the
    disputed records. Id. For that group, which consisted of 54 pages, the FBI categorically claimed
    Exemption 7(A) on the basis that the records related to the FBI’s investigation of Cliven Bundy.
    Id. at 206. The Court lacked sufficient information to find that Exemption 7(A) applied and
    2
    therefore denied the FBI summary judgment with respect to these pages but gave the FBI another
    chance to provide more details to justify its withholding. Id.
    At some point following Reporters II, the FBI concluded that Exemption 7(A) no longer
    applied to these 54 pages because the investigation at issue concluded and all appeal proceedings
    were also resolved. See Defs.’ Mot. Extension of Time to File ¶ 3(a), ECF No. 61. The FBI
    therefore reprocessed the 54 pages, which resulted in its decision to release 26 pages in part and
    withhold 28 pages in full. 2d Bender Decl. ¶ 12, ECF No. 64-3. These 54 pages “are records
    responsive to Item 7 of Plaintiff’s FOIA request, which seeks ‘records of any professional
    credentials, websites and business cards used by FBI agents in connection with the
    impersonation of a documentary filmmaker and/or a documentary film crew since January 1,
    2010.’” Pl.’s Renewed Cross-Mot. for Partial Summ. J. (“Pl.’s Cross-Mot.”) at 2, ECF No. 65
    (citing 2d Bender Decl. ¶ 3).
    The FBI has now renewed its motion for partial summary judgment with respect to these
    54 pages, claiming that the withheld portions of these 54 pages are protected by Exemptions 5, 6,
    7(C), 7(D), and 7(E). Defs.’ Mem. of Points and Authorities in Support of Defs.’ Renewed Mot.
    Summ. J. (“Defs.’ Mot.”) at 5, ECF No. 64-1. In support of its motion, the FBI attaches
    declarations from Joseph E. Bender, Jr., the Acting Section Chief of FBI’s Record/Information
    Dissemination Section (“RIDS”), and Michael G. Seidel, the Section Chief of RIDS. 2d Bender
    Decl. ¶ 1; 6th Am. Seidel Decl. ¶ 1, ECF No. 71-2.1
    1
    Defendants filed their reply at ECF No. 68, but later submitted a corrected reply at ECF
    No. 71-4 which corrected a minor, undisputed fact. See Defs.’ Errata at 1, ECF No. 71. The
    Court will consider the Defendants’ corrected reply as their reply brief. For the same reason, it
    will also consider the 6th Amended Seidel Declaration, ECF No. 71-2, in lieu of the 6th Seidel
    Declaration, ECF No. 68-2.
    3
    On the other side, the Committee has renewed its cross-motion for partial summary
    judgment. It concedes that the FBI’s withholdings pursuant to Exemption 5 and 7(D) are proper.
    Pl.’s Cross-Mot. at 3 n.2. It also concedes as proper the FBI’s withholding under Exemptions 6
    and 7(C) of information concerning third parties of investigative interest and individuals who
    provided information to the FBI. Id. But it disputes all of the FBI’s application of Exemption
    7(E), and it disputes the application of Exemption 6 and 7(C) to the identities of FBI special
    agents and professional staff. Id. at 3. In support of its motion, the Committee attaches two
    declarations from its Legal Director, Katie Townsend. 3d Townsend Decl. ¶ 1, ECF No. 65-3;
    4th Townsend Decl. ¶ 1, ECF No. 70-2. The cross-motions are now ripe for decision.
    III. LEGAL STANDARD
    The Freedom of Information Act is meant “to pierce the veil of administrative secrecy
    and to open agency action to the light of public scrutiny.” U.S. Dep’t of State v. Ray, 
    502 U.S. 164
    , 173 (1991) (quoting Dep’t of Air Force v. Rose, 
    425 U.S. 352
    , 361 (1976)). It “directs that
    ‘each agency, upon any request for records . . . shall make the records promptly available to any
    person’ unless the requested records fall within one of the statute’s nine exemptions.” Loving v.
    Dep’t of Def., 
    550 F.3d 32
    , 37 (D.C. Cir. 2008) (quoting 
    5 U.S.C. § 552
    (a)(3)(a)). “Consistent
    with the Act’s goal of broad disclosure,” those exemptions should be “given a narrow compass.”
    U.S. Dep’t of Just. v. Tax Analysts, 
    492 U.S. 136
    , 151 (1989). “The agency bears the burden of
    establishing that a claimed exemption applies.” Citizens for Resp. & Ethics in Wash. v. U.S.
    Dep’t of Just. (“CREW”), 
    746 F.3d 1082
    , 1088 (D.C. Cir. 2014).
    Because FOIA cases do not ordinarily involve disputed facts, they “are typically and
    appropriately decided on motions for summary judgment.” Moore v. Bush, 
    601 F. Supp. 2d 6
    , 12
    (D.D.C. 2009) (citations omitted). Summary judgment is warranted “if the movant shows that
    4
    there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
    matter of law.” Fed. R. Civ. P. 56(a). In assessing whether the movant has met that burden, a
    court “must view the evidence in the light most favorable to the nonmoving party, draw all
    reasonable inferences in his favor, and eschew making credibility determinations or weighing the
    evidence.” Montgomery v. Chao, 
    546 F.3d 703
    , 706 (D.C. Cir. 2008) (citations omitted). “This
    burden does not shift even when the requester files a cross-motion for summary judgment
    because ‘the Government ultimately has the onus of proving that the documents are exempt from
    disclosure . . . .’” Hardy v. ATF, 
    243 F. Supp. 3d 155
    , 162 (D.D.C. 2017) (brackets omitted)
    (quoting Pub. Citizen Health Research Grp. v. FDA, 
    185 F.3d 898
    , 904–05 (D.C. Cir. 1999)).
    “Typically, the agency demonstrates the applicability of a FOIA exemption by providing
    affidavits regarding the claimed exemptions.” Shapiro v. U.S. Dep’t of Just., 
    893 F.3d 796
    , 799
    (D.C. Cir. 2018). “[A]n agency’s justification for invoking a FOIA exemption is sufficient if it
    appears ‘logical’ or ‘plausible.’” 
    Id.
     (citation omitted). Even if a FOIA exemption applies, an
    agency cannot withhold information unless it also “reasonably foresees that disclosure would
    harm an interest protected by” the exemption. 
    5 U.S.C. § 552
    (a)(8)(A)(i)(I); see Reps. Comm.
    for Freedom of the Press v. FBI, 
    3 F.4th 350
    , 369 (D.C. Cir. 2021) (explaining the FOIA
    Improvement Act of 2016’s “foreseeable harm” requirement).
    IV. ANALYSIS
    The only issues currently in dispute are the FBI’s withholding of: (1) the names of FBI
    special agents and professional staff, including pseudonyms, under Exemptions 6 and 7(C); and
    5
    (2) various subcategories of information under Exemption 7(E). The Court will examine each in
    turn.2
    A. Exemptions 6 and 7(C)
    The FBI relied on Exemptions 6 and 7(C) to withhold information about the identities of
    FBI special agents and professional staff, including pseudonyms, in the Bundy investigation. See
    2d Bender Decl. ¶¶ 20–24. The Committee only challenges the FBI’s withholding of
    pseudonyms and the names of FBI special agents Adam Nixon, Michael Caputo, Andrew
    Gruninger, and Joel Willis. Pl.’s Cross-Mot. at 5.
    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). Exemption 7(C) protects “records or information compiled for law enforcement
    purposes . . . to the extent that the production of such law enforcement records or
    information . . . could reasonably be expected to constitute an unwarranted invasion of personal
    privacy.” 
    5 U.S.C. § 552
    (b)(7)(C). When all of the requested information serves a law
    enforcement purpose, courts will “confine [the] analysis to Exemption 7(C).” People for the
    Ethical Treatment of Animals v. Nat’l Institutes of Health, Dep’t of Health & Hum. Servs.
    (“PETA”), 
    745 F.3d 535
    , 541 (D.C. Cir. 2014) (explaining that Exemption 7(C) standard is
    “broader”). Here, there is no dispute that all of the requested information serves law
    enforcement purposes. Defs.’ Mot. at 11; Pl.’s Cross-Mot. at 3. Therefore, the Court will
    examine the FBI’s withholding under Exemption 7(C).
    2
    The FBI represents that it conducted an adequate search for Items 6 and 7. Defs.’ Mot.
    at 1 n.1. The Committee does not contest that. See generally Pl.’s Cross-Mot.; Pl.’s Reply.
    6
    “To meet its burden of establishing that Exemption 7(C) applies, the agency must
    demonstrate that (1) disclosure could ‘reasonably be expected to constitute an unwarranted
    invasion of privacy’ and (2) the ‘personal privacy interest’ is not ‘outweighed by the public
    interest in disclosure.’” Elec. Priv. Info. Ctr. v. U.S. Dep’t of Just., 
    18 F.4th 712
    , 718 (D.C. Cir.
    2021) (quoting Nat’l Archives & Recs. Admin. v. Favish, 
    541 U.S. 157
    , 160 (2004)). “Once the
    agency shows that the ‘privacy concerns addressed by Exemption 7(C) are present,’ the party
    seeking disclosure must show ‘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 that ‘the information
    is likely to advance that interest.’” 
    Id.
     (quoting Favish, 
    541 U.S. at 172
    ).
    “Exemption 7(C) ‘affords broad[ ] privacy rights to suspects, witnesses, and
    investigators.’” SafeCard Servs., Inc. v. SEC, 
    926 F.2d 1197
    , 1205 (D.C. Cir. 1991) (quoting
    Bast v. Dep’t of Just., 
    665 F.2d 1251
    , 1254 (D.C. Cir. 1981)). In SafeCard, the D.C. Circuit
    created a “categorical[]” rule regarding Exemption 7(C)’s application to names and other
    personal identifying information: “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.” Id. at 1206; see also Nation Mag., Wash. Bureau v. U.S.
    Customs Serv., 
    71 F.3d 885
    , 896 (D.C. Cir. 1995) (“As a general rule, SafeCard directs an
    agency to redact the names, addresses, or other identifiers of individuals mentioned in
    investigatory files in order to protect the privacy of those persons.”).
    Here, Exemption 7(C) does not justify the FBI’s withholding of pseudonyms. The
    Committee argues that because the “very purpose” of a pseudonym “is to shield an individual’s
    true identity,” there is no privacy interest in a pseudonym. Pl.’s Reply Mem. of Law in Support
    7
    of Pl.’s Renewed Cross-Mot. for Partial Summ. J. (“Pl.’s Reply”) at 7, ECF No. 70. The FBI
    does not respond to this point, but instead argues that there is “no evidence that releasing
    any . . . pseudonyms would shed light on the government’s activities.” Corrected Combined
    Reply in Support of Defs.’ Renewed Mot. for Partial Summ. J. and Opp’n to Pl.’s Renewed
    Cross-Mot. for Partial Summ. J. (“Defs.’ Reply”) at 5, ECF No. 71-4. But that puts the cart
    before the horse, because as a preliminary matter, the FBI has the “burden” to show that the
    “privacy concerns addressed by Exemption 7(C) are present.” Electronic Privacy, 18 F.4th at
    718 (citation omitted). This it has not done. The FBI does not claim, for example, that the
    pseudonyms in the 54 pages of records can be readily traced to or otherwise reveal the
    underlying individual’s identity. Thus, the FBI must release all pseudonyms in the 54 pages of
    records.
    The Committee’s challenge regarding the four FBI special agents, however, misses the
    mark. Under SafeCard, these individuals’ names and identifying information “are presumptively
    exempt from disclosure.” Schrecker v. U.S. Dep’t of Just., 
    349 F.3d 657
    , 666 (D.C. Cir. 2003);
    see Weisberg v. U.S. Dep’t of Just., 
    745 F.2d 1476
    , 1491 (D.C. Cir. 1984) (“[D]espite the fact
    that FBI agents are public officials, they have a ‘legitimate interest in preserving the secrecy of
    matters that conceivably could subject them to annoyance or harassment in either their official or
    private lives.’” (citation omitted)). The Committee argues that their names cannot be withheld
    because these agents have already been publicly associated with the Bundy investigation. See,
    e.g., Ex. A to 3d Townsend Decl., ECF No. 65-3 (news article mentioning that Mr. Nixon
    participated in the Bundy investigation); Ex. P to 3d Townsend Decl., ECF No. 65-3 (news
    article mentioning that Mr. Willis was a key witness in the government’s criminal case). The
    Committee offers transcripts of the trial testimonies of Special Agents Caputo, Nixon, and Willis
    8
    to show that they were involved in the Bundy investigation. See Caputo Tr. 174:19–23, Ex. A to
    4th Townsend Decl., ECF No. 70-2; Nixon Tr. Vol. 2 at 4:22–25, Ex. B to 4th Townsend Decl.,
    ECF No. 70-2; Willis Tr. 12-103:14–21, Ex. C to 4th Townsend Decl., ECF No. 70-2.3
    When an individual “himself has made several public statements . . . that involve the
    subject matter of those disclosures . . . Exemption 7(C) . . . would not serve any useful purpose in
    protecting his privacy.” National Magazine, 
    71 F.3d at 896
    . Such public disclosures by the
    individual “effectively waive” the individual’s “right to redaction of his name from documents
    on events that he has publicly discussed.” 
    Id.
     But “[f]or the public domain doctrine to apply, the
    specific information sought must have already been disclosed and preserved in a permanent
    public record.” Kowal v. U.S. Dep’t of Just., No. 18-cv-938, 
    2021 WL 3363445
    , at *5 (D.D.C.
    Aug. 3, 2021) (quoting Students Against Genocide v. Dep’t of State, 
    257 F.3d 828
    , 836 (D.C.
    Cir. 2001)); see also Reps. Comm. for Freedom of the Press v. U.S. Customs & Border Prot., 
    567 F. Supp. 3d 97
    , 127 (D.D.C. 2021) (applying public domain doctrine to Exemption 7(C) analysis
    of special agents’ identifying information). The issue is therefore whether these publicly
    available documents “effectively waive” these individuals’ right to keep their names redacted on
    the 54 pages of records. National Magazine, 
    71 F.3d at 896
    .
    The answer is no. News reports associating an individual with an investigation do not
    waive an individual’s privacy interest in that investigation. See, e.g., Codrea v. ATF, No. 21-cv-
    2201, 
    2022 WL 4182189
    , at *8 (D.D.C. Sept. 13, 2022). Likewise, “[i]t is established . . . that
    individuals do not waive their privacy rights merely by testifying at trials.” Peay v. Dep’t of
    3
    The Court may take judicial notice “of facts on the public record in other proceedings,”
    Moore v. Robbins, 
    24 F. Supp. 3d 88
    , 96 n.7 (D.D.C. 2014) (quoting Covad Comm’s Co. v. Bell
    Atl. Corp., 
    407 F.3d 1220
    , 1222 (D.C. Cir. 2005)), as well as the existence of the news articles,
    Shive-Ayala v. Pacelle, No. 21-cv-704, 
    2022 WL 782412
    , at *2 (D.D.C. Mar. 15, 2022).
    9
    Just., No. 4-cv-1859, 
    2006 WL 1805616
    , at *3 (D.D.C. June 29, 2006) (quoting Davis v. U.S.
    Dep’t of Just., 
    968 F.2d 1276
    , 1281–82 (D.C. Cir. 1992)). That principle rings especially true in
    this case because of the mismatch between the special agents’ trial testimonies and the
    information that the Committee seeks in the 54 pages of records. According to the Committee,
    three of the four named special agents testified in the Bundy criminal case that they were
    involved in the Bundy investigation. See Pl.’s Reply at 9–10 (identifying Special Agent
    Caputo’s testimony that he was involved in the “investigation of the Bundy matter”; Special
    Agent Nixon’s testimony that he was “involved in the investigation of events taking place
    in . . . Bunkerville, Nevada”; Special Agent Willis’s testimony that he was “assigned [to] an
    investigation into the events of April 12th, 2014” (quoting trial transcripts)). These testimonies,
    however, only reveal the fact that these special agents were involved in some capacity in the
    Bundy investigation—an enormous, multi-year effort which resulted in the prosecution of over a
    dozen defendants, including Cliven Bundy and two of his sons. See United States v. Bundy, 
    968 F.3d 1019
    , 1022 (9th Cir. 2020). By comparison, the 54 pages of records at issue here concern a
    specific subject matter: “any professional credentials, websites and business cards used by FBI
    agents in connection with the impersonation of a documentary filmmaker and/or a documentary
    film crew since January 1, 2010.” Pl.’s Cross-Mot. at 2 (citing 2d Bender Decl. ¶ 3)).
    This stark mismatch is fatal to the Committee’s position. The Committee has made no
    effort to show that the special agents have publicly disclosed their involvement in the Bundy
    investigation in connection with the filmmaker impersonation tactic. See Davis, 
    968 F.2d at 1280
     (“Davis has not satisfied his burden to point to specific information in the public domain.”).
    For that reason, the special agents have not waived their privacy rights to their identifying
    information in the 54 pages of records. See Lardner v. U.S. Dep’t of Just., No. 3-cv-180, 2005
    
    10 WL 758267
    , at *19 (D.D.C. Mar. 31, 2005) (“Although the identity of some of these individuals
    may be public[ly] known, their presence in an FBI investigatory file is not.”); Sellers v. U.S.
    Dep’t of Just., 
    684 F. Supp. 2d 149
    , 159–60 (D.D.C. 2010) (“Even if plaintiff already knows the
    identities of trial witnesses, the agency’s decision to withhold their names and other identifying
    information under Exemption 7(C) is justified.”).
    The Committee’s cases are inapposite. In Reps. Comm. for Freedom of the Press v. U.S.
    Customs & Border Prot., 
    567 F. Supp. 3d 97
     (D.D.C. 2021), the FOIA requester sought agency
    records related to the agency’s issuance of a summons to Twitter concerning the Twitter account
    of an individual who was critical of the agency. Id. at 107. The summons contained the names
    of two special agents from the agency. Id. The court ruled that the agency could not redact the
    names of these two special agents in its production because given the fact that the special agents’
    “names appeared on the Twitter summons and in the subsequent litigation,” “[t]heir involvement
    with the summons therefore exists in the public domain.” Id. at 127. Whereas the special
    agents’ names in that case were publicly available on the document forming the center of the
    controversy, nothing in this case that the Committee has demonstrated is publicly available
    shows that the special agents were involved “in connection with the impersonation of a
    documentary filmmaker and/or a documentary film crew.” See Pl.’s Cross-Mot. at 2; 2d Bender
    Decl. ¶ 3. In other words, here, the agents’ “involvement” with the filmmaker impersonation
    tactic does not “exist[] in the public domain.” Reporters Committee, 567 F. Supp. 3d at 127.
    United Am. Fin., Inc. v. Potter, 
    667 F. Supp. 2d 49
     (D.D.C. 2009), is also disanalogous.
    There, the requester sought information from USPS regarding an investigation into whether the
    requester was engaged in an identity theft scam involving USPS employees. 
    Id. at 53
    . In its
    production, USPS redacted identifying information of its newsletter’s editorial staff, claiming
    11
    Exemptions 6 and 7(C). 
    Id.
     at 62–63. The court, however, found that these individuals lacked
    “any privacy interest” in disclosure of their identifying information for the simple reason that
    their names were already publicly available “on the current version of the [newsletter’s]
    website.” 
    Id. at 63
    . Therefore, the court required USPS to “release the page with the editorial
    staff information in full.” 
    Id.
     Unlike United America, the Committee has not shown that the
    special agents’ involvement with the filmmaker impersonation tactic is publicly available
    information. To the contrary, as discussed above, it has made no effort to match the agents’ trial
    testimonies with the subject matter of the 54 pages of records.
    Having established that Exemption 7(C) applies, the FBI has also shown that it
    “reasonably foresees disclosure would harm an interest protected by [the] exemption.” 
    5 U.S.C. § 552
    (a)(8)(A)(i)(I). The FBI has stated that disclosure of agent names could lead to harassment
    of agents and their families and also impair their duties. 2d Bender Decl. ¶¶ 23–24. The FBI
    observed that in retaliation for the Bundy investigation, militia groups have already targeted
    several agents and their families by posting their personal information and home addresses on
    social media. Id. ¶ 23. Disclosure of the information that the Committee seeks here would
    likewise jeopardize these agents’ privacy. If someone “carry[ing] a grudge” knew that an agent
    performed a particular role in the Bundy investigation, he could “seek revenge.” Id. Therefore,
    the FBI properly invoked Exemption 7(C) to withhold the information in question.
    B. Exemption 7(E)
    Exemption 7(E) protects from disclosure “records or information compiled for law
    enforcement purposes, but only to the extent that the production of such law enforcement records
    or information . . . would disclose techniques and procedures for law enforcement investigations
    or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions
    12
    if such disclosure could reasonably be expected to risk circumvention of the law.” 
    5 U.S.C. § 552
    (b)(7)(E). A record must therefore meet three requirements to qualify for the exemption:
    (1) it must be “compiled for law enforcement purposes”; (2) the release of the record must
    disclose techniques, procedures, or guidelines used for law enforcement investigations or
    prosecutions; and (3) it must be that the disclosure of those techniques, procedures, or guidelines
    “could reasonably be expected to risk circumvention of the law.” See Advancement Project v.
    U.S. Dep’t of Homeland Sec., 
    549 F. Supp. 3d 128
    , 142 (D.D.C. 2021).
    Two points bear clarifying with respect to Exemption 7(E)’s third requirement. First,
    according to D.C. Circuit caselaw, an Exemption 7(E) claimant must show a risk of
    circumvention of the law regardless of whether a law enforcement technique, procedure, or
    guideline is at stake. See Pub. Emps. for Env’t Resp. v. U.S. Sec., Int’l Boundary and Water
    Comm’n, U.S.-Mexico, 
    740 F.3d 195
    , 204 n.4 (D.C. Cir. 2014) (remarking that, unlike the
    Second Circuit, the D.C. Circuit has applied the “risk of circumvention” requirement to
    techniques and procedures in addition to guidelines). Second, the language of this
    requirement—“could reasonably be expected to risk circumvention of the law”—supplants the
    FOIA Improvement Act’s general requirement that an agency must disclose records unless it is
    reasonably foreseeable that disclosure would harm the interest the claimed exemption protects.
    See Reporters II, 548 F. Supp. 3d at 196–97 & n.2.4
    4
    The Committee erroneously claims that the FOIA Improvement Act’s heightened
    standard applies to Exemption 7(E). Pl.’s Cross-Mot. at 11–13 (citing 
    5 U.S.C. § 552
    (a)(8)(A)(i)(I)). Reporters II already rejected the Committee’s argument and explained in
    detail that “the FOIA Improvement Act does not heighten [Exemption 7(E)’s] substantive
    standard.” See Reporters II, 548 F. Supp. 3d at 196–97 & n.2; accord Citizens for Resp. &
    Ethics in Wash. v. U.S. Dep’t of Homeland Sec., 
    525 F. Supp. 3d 181
    , 192 & n.4 (D.D.C. 2021).
    The Committee cites Reps. Comm. for Freedom of the Press v. U.S. Customs & Border Prot.,
    
    567 F. Supp. 3d 97
     (D.D.C. 2021), as evidence of a court in this District adopting the heightened
    13
    Here, the FBI invoked Exemption 7(E) over portions of the 54 pages of records. After
    the Committee renewed its cross-motion for partial summary judgment, however, the FBI
    decided to reprocess the 54 pages of records and removed certain redactions it had previously
    made under Exemption 7(E). See 6th Am. Seidel Decl. ¶ 6; Pl.’s Reply at 1, 3–6 (listing newly
    released information). The Committee contends that the FBI’s mid-briefing disclosures “casts
    serious doubt on the veracity of the declaration of Joseph Bender . . . and precludes summary
    judgment for Defendants’ Exemption 7(E) claims on the basis of their declarants alone.” Id. at 4.
    The Court rejects that suggestion. To the extent that the Committee is alleging that the agency
    discharged its FOIA duties in bad faith, it has not produced any evidence that would lead the
    Court to believe that the agency intentionally tried to withhold documents it knew must be
    disclosed. Cf. McGehee v. CIA, 
    697 F.2d 1095
    , 1113 (D.C. Cir. 1983) (finding “cumulative
    weight” of agency’s multi-year delay in processing request and its improper search cut-off date
    as evidence of bad faith). If anything, the FBI’s revised release with respect to previously
    withheld documents under Exemption 7(E) shows that the agency was attentive to the arguments
    raised in the Committee’s cross-motion and made a good-faith effort to revise its production
    accordingly. See 6th Am. Seidel Decl. ¶ 16 (“Plaintiff’s Opposition provided certain information
    that upon further review, the FBI determined was within the public domain and should be
    released.”). The Court declines to penalize the agency for taking additional steps to comply with
    its FOIA obligations and release more information in response to the requester’s briefing. Cf.
    Khatchadourian v. Def. Intel. Agency, 
    453 F. Supp. 3d 54
    , 79 (D.D.C. 2020) (“DIA was entitled
    to reprocess the records and change its mind about whether they were classified. Agencies
    standard for Exemption 7(E), but in fact that case expressly endorsed Reporters II’s view on this
    issue. Id. at 127.
    14
    frequently do this, and oftentimes they realize that they can release documents they previously
    thought should be exempt.”).
    With that housekeeping out of the way, the Court turns to the merits. As discussed
    above, the Committee does not dispute that these are law enforcement records. Thus, the FBI
    has satisfied Exemption 7(E)’s first requirement. The remaining issues are whether these files
    include law enforcement techniques, procedures, or guidelines and whether disclosure could risk
    circumvention of the law. The FBI has grouped its application of Exemption 7(E) into four
    categories: (1) undercover unit/squad information; (2) specific investigations; (3) undercover
    operations; and (4) monetary payments. The Court will assess whether each category of
    information satisfies Exemption 7(E).
    1. Undercover Unit/Squad Information
    The FBI invokes Exemption 7(E) to “protect[] methods and techniques involving the
    location and identity of certain specialized FBI units or joint units, squads and divisions that
    were involved in the investigations.” 2d Bender Decl. ¶ 42. The FBI claims that besides the
    involvement of the Las Vegas Field Office, “it is not publicly known if other [FBI Headquarters]
    divisions, squads, or joint task forces assisted.” Id. ¶ 43. The FBI’s declarant explains how
    disclosure could reveal FBI techniques regarding how it allocated resources and manpower in
    this investigation and the reach of the investigation’s geographic scope. Id. ¶¶ 41–43.
    Disclosure of this information could risk circumvention of law, which “requires only that an
    agency ‘demonstrate logically how the release of the requested information might create a risk of
    circumvention of the law.’” Reporters Committee II, 548 F. Supp. 3d at 200 (emphasis in
    original) (quoting Mayer Brown, 562 F.3d at 1194). Under the FBI’s mosaic theory, which
    posits that seemingly innocuous information “when taken together” in the aggregate could reveal
    15
    protected information, a potential lawbreaker could piece together this information to draw
    conclusions about the FBI’s investigatory methods. See id. at 199–200 (describing the mosaic
    theory and finding that the FBI properly invoked it); 2d Bender Decl. ¶ 43. The Court finds the
    FBI’s explanation logical and plausible.
    The Committee’s counterarguments are unpersuasive. It avers that the locations of the
    FBI’s operations “are well documented” from news articles and that the FBI would have
    necessarily “reli[ed] on local FBI offices, squads, and divisions along the way.” Pl.’s Cross-Mot.
    at 16. It also claims that the FBI “routinely” discloses which FBI units are involved in a
    particular investigation but only cites a single example. Id. at 18. But even if news articles give
    the public an idea of the various locations involved in the Bundy investigation, they do not
    disclose the specific FBI units that were involved in the investigation and how the FBI allocated
    unit resources. The Committee speculates that FBI units only work locally, but nothing in the
    record confirms this. Nor does the Committee show that the locations mentioned in news articles
    account for the full geographic scope of the investigation. In addition, the analysis does not
    change simply because the FBI has at some point in the past disclosed the involvement of a field
    office in an unrelated case. The FBI did not disclose undercover unit/squad information in this
    case, and the Committee has not pointed to evidence to suggest otherwise. Cf. Shapiro v. Dep’t
    of Just., No. 12-cv-313, 
    2020 WL 3615511
    , at *38 (D.D.C. July 2, 2020) (finding that FBI was
    entitled to withhold unit identities and location even if “some exempt information slips through
    the cracks” unintentionally), aff’d in relevant part, 
    40 F.4th 609
     (D.C. Cir. 2022). This
    information is therefore appropriately withheld under Exemption 7(E).
    16
    2. Focus of Specific Investigations
    The FBI also invokes Exemption 7(E) to protect information regarding the focus of
    specific investigations. See 2d Bender Decl. ¶¶ 44–45. The Court interprets this to mean
    specific investigations within the larger context of the Bundy investigation, which concerns not
    just Cliven Bundy but other related subjects. See Reporters II, 548 F. Supp. 3d at 206–07. The
    Committee counters that the FBI has not identified a single technique, procedure, or guideline it
    is seeking to protect. Pl.’s Cross-Mot. at 19.5 But the FBI has the better view, because revealing
    the FBI’s points of focus in the particular investigations would necessarily reveal its techniques
    and procedures. See Whittaker v. U.S. Dep’t of Just., No. 18-cv-01434, 
    2019 WL 2569915
    , at *2
    (D.D.C. June 21, 2019) (“The phrase ‘techniques and procedures’ . . . refers to how law
    enforcement officials go about investigating a crime.” (emphasis in original) (quoting Allard K.
    Lowenstein Int’l Human Rights Project v. Dep’t of Homeland Sec., 
    626 F.3d 678
    , 682 (2d Cir.
    2010))). The FBI’s declarant states that “[r]eleasing the focus of specific FBI investigations
    would enable criminals to predict the FBI’s investigative strategies, structure their activities in a
    manner that thwarts the FBI’s investigative efforts, and continue to circumvent the law.” 2d
    Bender Decl. ¶ 45. The Court finds this explanation logical and plausible. Indeed, courts in this
    District routinely allow the FBI to protect this kind of information. See, e.g., Shapiro, 
    2020 WL 3615511
    , at *40 (finding FBI was entitled to protect investigative focus of specific investigations
    under Exemption 7(E)); Poitras v. Dep’t of Homeland Sec., 
    303 F. Supp. 3d 136
    , 159 (D.D.C.
    5
    The Committee also argues that the FBI’s withdrawal of Exemption 7(A) as a basis to
    protect this information shows that disclosure would not enable criminals to change their
    behavior to avoid detection or prosecution. Pl.’s Cross-Mot. at 20. But the Committee’s
    argument conflates Exemption 7(A) with Exemption 7(E) without citing any caselaw for the
    proposition that the two exemptions rise or fall together. The Court must therefore analyze
    whether Exemption 7(E) applies even if Exemption 7(A) does not.
    17
    2018) (same); Amuso v. U.S. Dep’t of Just., 
    600 F. Supp. 2d 78
    , 101 (D.D.C. 2009) (same). The
    Court will do the same here.
    3. Undercover Operations
    The FBI invokes Exemption 7(E) to withhold details regarding the “length, breadth, and
    methodology” of undercover operations. 2d Bender Decl. ¶ 47; see Defs.’ Reply at 12. The
    FBI’s declarant acknowledged that while some information exists in the public domain regarding
    the Bundy investigation, the FBI only seeks to protect “non-public details” of its investigation,
    such as “the extent operatives can infiltrate organizations,” “covert communication techniques,”
    and “approval requirements for different facets of undercover operations.” 2d Bender Decl. ¶ 47.
    Mr. Bender explained that “[s]ecrecy and discretion are essential when conducting effective
    undercover operations” and that disclosure would undermine “the viability of such operations”
    and the ability of “FBI undercover operatives and operations to be deployed, undetected.” 
    Id.
    Revealing this information could allow wrongdoers to “detect FBI undercover operations in the
    future . . . as well as place[e] undercover operatives in harm’s way.” 
    Id.
     For its part, the
    Committee argues that any withholding on this basis is improper because “much is known” about
    the length, breadth, and methodology of the Bundy investigation. Pl.’s Cross-Mot. at 23.
    The FBI, once again, has the better view. It is true that as a result of media attention and
    the criminal trials, the public is aware of the FBI’s filmmaker impersonation technique and
    knows at least some details about the FBI’s operations. That certain public information exists
    about the Bundy investigation, however, does not undermine the FBI’s withholding of non-
    public information about its undercover operations concerning the Bundy investigation. The FBI
    has represented that this is the portion it is withholding, and the Court has no basis here to doubt
    it. As other judges in this District have noted in FOIA cases involving the FBI’s undercover
    18
    operations, Exemption 7(E) still applies where, as here, plaintiff “cannot show that the Bureau
    has acknowledged all of the withheld undercover techniques.” Cabezas v. FBI, No. 19-cv-145,
    
    2022 WL 898789
    , at *10 (D.D.C. Mar. 28, 2022). Because the Committee has failed to make
    that showing, “[r]evealing additional details could provide potential wrongdoers further
    information about the Bureau’s operations and could decrease the efficacy of the Bureau’s
    techniques.” Id.; see also Shapiro, 
    2020 WL 3615511
    , at *40 (affirming FBI’s withholding of
    non-public details about undercover operations); Watson v. U.S. Dep’t of Just., No. 18-cv-1645,
    
    2020 WL 5505346
    , at *5 (D.D.C. Sept. 10, 2020) (same).
    The FBI, however, may not withhold information from its Longbow Productions
    webpage. With respect to this webpage, the FBI contends that “[r]evealing undercover
    operational information that the FBI has not publicly acknowledged would place the use of such
    techniques at risk for circumvention of the law.” 6th Am. Seidel Decl. ¶ 27. So the issue turns
    on whether the Longbow Productions webpage is publicly available. “[F]or the public domain
    doctrine to apply, the specific information sought must have already been ‘disclosed and
    preserved in a permanent public record.’” Jud. Watch, Inc. v. U.S. Dep’t of Def., 
    963 F. Supp. 2d 6
    , 12 (D.D.C. 2013) (quoting Cottone, 193 F.3d at 554). Here, the Committee attached to its
    briefing screenshots of the FBI’s Longbow Productions webpage which it accessed through a site
    called the Internet Archive Way Back Machine. See Ex. L to 3d Townsend Decl., ECF No. 65-
    3.6 The FBI does not dispute the authenticity of this information. Instead, it argues that this
    information does not exist in the public domain because the Longbow Productions webpage,
    6
    The Internet Archive Way Back Machine is a non-profit “digital library of Internet
    sites” that “archiv[es] the Internet itself.” See About the Internet Archive, Archive.org,
    https://archive.org/about/. It is “widely recognized and relied upon by the public, press, and
    courts in this Circuit.” Pl.’s Reply at 18 (citing cases).
    19
    which the FBI has since taken down, is not “easily accessible” and therefore not “actually in the
    public domain.” Defs.’ Reply at 13. But the FBI’s cramped notion of the public domain makes
    no sense, and it cannot cite a single case for the proposition that only a website’s original URL
    can be in the public domain for FOIA purposes. The Committee’s counsel has identified the
    Longbow Productions webpage’s archived URL link, which the Court, and any member of the
    public, can readily access. See 3d Townsend Decl. ¶ 13, ECF No. 65-3.7 Thus, this information
    has been “disclosed and preserved in a permanent public record.” Jud. Watch, 963 F. Supp. 2d at
    12 (quotation marks omitted). Therefore, the FBI cannot withhold information under Exemption
    7(E) that duplicates information from this webpage.
    4. Monetary Payments
    The last category the FBI seeks to protect under Exemption 7(E) is monetary payments
    that were either requested or paid by the FBI in the course of the Bundy investigation. 2d
    Bender Decl. ¶¶ 48–49. The FBI’s declarant claims that disclosure of this information would
    show “what the FBI agent on the ground determined was necessary to conduct that operation”
    and the FBI’s “allocation nexus to an investigative scope or area.” Id. ¶ 49. This information,
    when aggregated with other information “in mosaic fashion,” could give a potential wrongdoer
    “a larger understanding of the FBI’s priorities, investigative scope, and efforts.” Id. For its part,
    the Committee argues that the FBI’s spending on the Bundy investigation is no secret because a
    judge in the Bundy criminal case remarked that the government’s spending was “staggering.”
    Pl.’s Cross-Mot. at 26–27. The Committee also notes that the FBI’s spending on the Bundy
    7
    https://web.archive.org/web/20170824005541/http://www.longbowproductions.com/
    (last visited October 21, 2022).
    20
    investigation would not reveal the FBI’s general spending habits on investigations because the
    Bundy investigation involved “a particularly ‘unique’ scheme.” Id. at 27 (citation omitted).
    The FBI has the better view. Although the public may know that the FBI spent a
    considerable amount in this investigation, it does not know precisely how much the FBI spent,
    much less how the FBI spent it. The Committee’s characterization of the Bundy investigation as
    unique does not lessen the insights that a potential wrongdoer may glean by comparing the FBI’s
    spending priorities and patterns. Cf. Shapiro, 
    2020 WL 3615511
    , at *38 (“Though the cost of
    one hotel room may not reveal much . . . the FBI must be cautious in revealing individual budget
    line-items lest it reveal the entire budget.”); see also Dutton v. U.S. Dep’t of Just., 
    302 F. Supp. 3d 109
    , 124 (D.D.C. 2018) (approving FBI’s reliance on Exemption 7(E) to withhold
    information concerning “monetary payments for investigative techniques”). Thus, this
    information is also protected under Exemption 7(E).
    *               *               *
    After properly invoking an exemption, an agency must also “take reasonable steps
    necessary to segregate and release nonexempt information.” 
    5 U.S.C. § 552
    (a)(8)(A)(ii)(II).
    Non-exempt portions of records need not be disclosed, however, if they are “inextricably
    intertwined with exempt portions.” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 
    566 F.2d 242
    , 260 (D.C. Cir. 1977). An agency is presumed to have complied with the segregability
    requirement unless the FOIA requester points to evidence indicating otherwise. See Sussman v.
    U.S. Marshals Serv., 
    494 F.3d 1106
    , 1117 (D.C. Cir. 2007).
    Here, the FBI’s declarant represented that the FBI performed a segregability analysis for
    all 54 pages at issue, which consisted of pages the FBI released in part and pages it withheld in
    full. 2d Seidel Decl. ¶ 50. Mr. Seidel further stated that the FBI withheld information that was
    21
    “so intertwined with exempt material” that it could not be further segregated. Id.; see also 6th
    Am. Seidel Decl. ¶ 16. The Committee’s briefing did not challenge the FBI’s segregability
    analysis with respect to any of the 54 pages. Thus, the Court is satisfied that the FBI has
    adequately segregated non-exempt information.
    To sum up, the FBI is entitled to assert Exemption 6 and 7(C) to withhold the names and
    identifying information of its special agents and professional staff. But it must disclose any
    pseudonyms. In addition, the FBI is entitled to assert Exemption 7(E) to withhold the four
    categories of information described above. But the FBI must disclose information that is already
    in the public domain such as that found on the Longbow Productions webpage.
    V. CONCLUSION
    For the foregoing reasons, the Court grants in part and denies in part Defendants’ motion
    partial for summary judgment (ECF No. 64), and grants in part and denies in part Plaintiff’s
    cross-motion for partial summary judgment (ECF No. 65). An order consistent with this
    Memorandum Opinion is separately and contemporaneously issued.
    Dated: October 21, 2022                                            RUDOLPH CONTRERAS
    United States District Judge
    22
    

Document Info

Docket Number: Civil Action No. 2017-1701

Judges: Judge Rudolph Contreras

Filed Date: 10/21/2022

Precedential Status: Precedential

Modified Date: 10/21/2022

Authorities (21)

Moore v. Bush , 601 F. Supp. 2d 6 ( 2009 )

UNITED AMERICA FINANCIAL, INC. v. Potter , 667 F. Supp. 2d 49 ( 2009 )

Mead Data Central, Inc. v. United States Department of the ... , 566 F.2d 242 ( 1977 )

Montgomery v. Chao , 546 F.3d 703 ( 2008 )

United States Department of State v. Ray , 112 S. Ct. 541 ( 1991 )

National Archives & Records Administration v. Favish , 124 S. Ct. 1570 ( 2004 )

Students Against Genocide v. Department of State , 257 F.3d 828 ( 2001 )

Safecard Services, Inc. v. Securities and Exchange ... , 926 F.2d 1197 ( 1991 )

Fielding M. McGehee III v. Central Intelligence Agency , 697 F.2d 1095 ( 1983 )

Harold Weisberg v. U.S. Department of Justice, (Two Cases). ... , 745 F.2d 1476 ( 1984 )

Sussman v. United States Marshals Service , 494 F.3d 1106 ( 2007 )

United States Department of Justice v. Tax Analysts , 109 S. Ct. 2841 ( 1989 )

Amuso v. United States Department of Justice , 600 F. Supp. 2d 78 ( 2009 )

Sellers v. U.S. Department of Justice , 684 F. Supp. 2d 149 ( 2010 )

Poitras v. Dep't of Homeland Sec. , 303 F. Supp. 3d 136 ( 2018 )

The Nation Magazine, Washington Bureau, and Max Holland v. ... , 71 F.3d 885 ( 1995 )

John Davis v. United States Department of Justice , 968 F.2d 1276 ( 1992 )

Richard L. Bast v. U. S. Department of Justice. Richard L. ... , 665 F.2d 1251 ( 1981 )

Schrecker v. United States Department of Justice , 349 F.3d 657 ( 2003 )

Allard K. Lowenstein International Human Rights Project v. ... , 70 A.L.R. Fed. 2d 785 ( 2010 )

View All Authorities »