Muslim Advocates v. United States Department of Justice , 833 F. Supp. 2d 106 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
MUSLIM ADVOCATES, )
)
Plaintiff, )
) Civil Action No. 09-1754 (EGS)
v. )
)
UNITED STATES DEPARTMENT )
OF JUSTICE, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Muslim Advocates brings this action under the
Freedom of Information Act (“FOIA”), seeking the complete and
unredacted final version of certain chapters of the Domestic
Investigations and Operations Guide (the “DIOG”) of the Federal
Bureau of Investigation (“FBI”). In a Memorandum Opinion and
Order dated November 10, 2011, this Court granted in part and
denied in part defendant’s motion for summary judgment, and
denied plaintiff’s cross-motion for summary judgment. See
Muslim Advocates v. Dep’t of Justice, No. 09-1754, 2011 U.S.
Dist. LEXIS 130283, *34-35 (D.D.C. Nov. 10, 2011);1 see also
Order Granting in Part and Denying in Part Def.’s Mot. for Summ.
J. and Denying Pl.’s Cross-Mot. for Summ. J., Docket No. 29.
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The relevant factual background was set forth in the
Court’s November 10, 2011 Memorandum Opinion, see Muslim
Advocates, 2011 U.S. Dist. LEXIS 130283, at *3-11, and need not
be recited here.
With respect to defendant’s motion for summary judgment, the
Court concluded that defendant was entitled to summary judgment
as to the material it withheld in Chapters 5 and 10 of the DIOG.
See Muslim Advocates, 2011 U.S. Dist. LEXIS 130283, at *35. As
to Chapter 16 of the DIOG, however, which was almost entirely
redacted, the Court found that the affidavit provided by the
government was not “sufficiently detailed to allow this Court to
undertake a meaningful assessment of the redacted material.”
Id. at *35. The Court therefore denied defendant’s motion for
summary judgment as to Chapter 16 without prejudice, and the
Court ordered defendant to provide a more detailed affidavit
describing its redactions in Chapter 16. Id. at *35-36.
On December 1, 2011, defendant filed, ex parte, the
Declaration of Sean M. Joyce for the Court’s in camera review.
See Def.’s Notice of Ex Parte Filing, Docket No. 32. Defendant
filed a redacted version of that declaration on the public
docket on December 6, 2011. See Def.’s Notice of Filing
Redacted Document, Docket No. 33. Upon careful consideration of
the ex parte Declaration of Sean M. Joyce, the applicable law
and the entire record in this case, and for the reasons set
forth below, the Court hereby GRANTS defendant’s motion for
summary judgment as to Chapter 16 of the DIOG.
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I. LEGAL FRAMEWORK
A. Rule 56
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted if the moving party has shown that
there are no genuine issues of material fact and that the moving
party is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991
(D.C. Cir. 2002). In determining whether a genuine issue of
material fact exists, the court must view all facts in the light
most favorable to the non-moving party. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B. FOIA
FOIA requires agencies to disclose all requested agency
records, 5 U.S.C. § 552(a), unless one of nine specific
statutory exemptions applies, id. § 552(b). “Consistent with
‘the basic policy that disclosure, not secrecy, is the dominant
objective of the Act,’ the statutory exemptions are ‘narrowly
construed.’” Consumers’ Checkbook, Ctr. for the Study of Servs.
v. Dep’t of Health and Human Servs., 554 F.3d 1046, 1057 (D.C.
Cir. 2009) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352,
361 (1976)); see also Wolf v. Cent. Intelligence Agency, 473
F.3d 370, 374 (D.C. Cir. 2007) (quoting Dep’t of Justice v.
Julian, 486 U.S. 1, 8 (1988)).
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FOIA’s “strong presumption in favor of disclosure places
the burden on the agency to justify the withholding of any
requested documents.” Dep’t of State v. Ray, 502 U.S. 164, 173
(1991). The government may satisfy its burden of establishing
its right to withhold information from the public under a FOIA
exemption by submitting appropriate declarations and, where
necessary, an index of the information withheld. See Vaughn v.
Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973). If the
government’s affidavit “describes the justifications for
withholding the information with specific detail, demonstrates
that the information withheld logically falls within the claimed
exemption, and is not contradicted by contrary evidence in the
record or by evidence of the [government’s] bad faith, then
summary judgment is warranted on the basis of the affidavit
alone.” ACLU v. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir.
2011). Moreover, “‘an agency’s justification for invoking a
FOIA exemption is sufficient if it appears ‘logical’ or
‘plausible.’’” Id. (quoting Larson v. Dep’t of State, 565 F.3d
857, 862 (D.C. Cir. 2009)).
Exemption 7(E) of FOIA protects from disclosure records or
information compiled for law enforcement purposes, “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
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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).
Courts have held that information pertaining to law enforcement
techniques and procedures is properly withheld where disclosure
reasonably could lead to circumvention of laws or regulations.
See, e.g., Skinner v. Dep’t of Justice, 744 F. Supp. 2d 185, 214
(D.D.C. 2011) (citing cases). “[A] highly specific burden of
showing how the law will be circumvented” is not required;
instead, “exemption 7(E) only requires that [the agency]
‘demonstrate[] logically how the release of [the requested]
information might create a risk of circumvention of the law.’”
Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009)
(quoting PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 251 (D.C.
Cir. 1993)).
II. ANALYSIS
Having carefully reviewed defendant’s ex parte declaration
of Sean M. Joyce, the Court finds that the government has now
satisfied its burden of establishing its right to withhold the
information contained in Chapter 16 of the DIOG. The
declaration describes in detail each redacted section of Chapter
16 and the justifications for withholding that information, and
it demonstrates that the information withheld logically falls
within exemption 7(E). See Declaration of Sean M. Joyce, Docket
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No. 33-1, at ¶¶ 9-19. The declaration sufficiently demonstrates
how the release of the requested information might create a risk
of circumvention of the law. See id. For example, Mr. Joyce
states:
Whether and when a particular investigative activity
may be undertaken in connection with an assessment, a
predicated investigation and so forth is a matter of
internal procedure. . . . Disclosure of this internal
information could increase the risk of circumvention.
An individual considering commission of a crime and
attempting to evade detection, armed with the
knowledge as to whether and what types of
investigative activities are or are not allowed during
certain types of investigations, can determine whether
their activities are likely to be detected and alter
their behavior to avoid detection. Similarly,
knowledge that a particular activity will not be
approved internally at the FBI absent certain types of
information – or under what conditions – can be
exploited by someone seeking to evade detection, again
by altering their behavior, modifying their plan of
action, or ceasing to engage in any criminal behavior
until they believe the risk of potential FBI interest
has passed.
Id. ¶ 14. The Court concludes that it is both plausible and
logical that the disclosure of detailed information regarding
the FBI’s procedures for investigation of and undisclosed
participation in target organizations could risk circumvention
of the law and impede the FBI’s ability to carry out its
mission. See, e.g., Piper v. Dep't of Justice, 294 F. Supp. 2d
16, 30 (D.D.C. 2003) (approving the withholding of polygraph
test information on the ground that disclosure "has the
potential to allow a cunning criminal to extrapolate a pattern
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or method to the FBI's questioning technique," and anticipate or
thwart the FBI's strategy); Perrone v. Fed. Bureau of
Investigation, 908 F. Supp. 24, 28 (D.D.C. 1995) (concluding
that the FBI FD-515 form was properly withheld under Exemption
7(E) because "disclosure of this information would help . . .
potential criminals predict future investigative actions by the
FBI and consequently employ countermeasures to neutralize those
techniques"). Moreover, the Court finds no evidence in the
record that contradicts the government’s justifications for
withholding the redacted information or demonstrates bad faith.
Therefore, the Court concludes that summary judgment as to
Chapter 16 is warranted on the basis of the government’s
declaration.
III. CONCLUSION
For the foregoing reasons, defendant’s motion for summary
judgment is hereby GRANTED. An appropriate Order accompanies
this Memorandum Opinion.
Signed: EMMET G. SULLIVAN
United States District Judge
January 11, 2012
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