Sennett v. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LAURA SENNETT,
Plaintiff,
v. Civil Action No. 12-495 (JEB)
DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
Plaintiff Laura Sennett – a photojournalist who claims a special interest in covering
protests, political demonstrations, and “grassroots activism” – submitted a request to the Federal
Bureau of Investigation seeking “files, correspondence, or other records concerning [herself].”
After a search and review of documents, the agency produced more than 1,000 pages of
responsive records but withheld and redacted a number of records pursuant to specific provisions
of the Freedom of Information Act and the Privacy Act. Unsatisfied, Plaintiff brought this suit
challenging the sufficiency of Defendant’s search, as well as the propriety of many of its
withholdings. Arguing that it has complied with its obligations, Defendant now moves for
summary judgment. Because the Bureau’s search was adequate and its withholdings largely
proper, the Court will grant Defendant’s Motion for the most part.
I. Background
There are a number of background facts that appear to be undisputed. In the early
morning hours of April 12, 2008, protesters gathered at the Four Seasons Hotel in Georgetown
for a demonstration during the International Monetary Fund’s annual spring meeting. See
Compl., ¶¶ 7-8. Sennett attended with the purpose of photographing the event. See id., ¶ 8.
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Following the demonstration and acts of vandalism surrounding it, a warrant to search Sennett’s
home was obtained, which was executed on September 23, 2008. See Sennett v. United States,
667 F.3d 531, 532-36 (4th Cir. 2012) (describing demonstration and subsequent search). The
officers who conducted the search seized “more than 7,000 pictures, two computers, several
cameras and other camera equipment.” Compl., ¶ 9.
Sennett thereafter submitted the following request to the FBI seeking records related to
the search: “This is a request for records under the Privacy Act. I request copies of all files,
correspondence, or other records concerning myself. Please search both your automated indices
and the older general (manual) indices. To prove my identity, I am enclosing a completed form
DOJ-361.” Mot., Declaration of David M. Hardy, Exh. A (9/5/2010 Sennett Request). On
March 18, 2011, the FBI notified Plaintiff that 280 pages of records had been reviewed and 213
pages were being released in full or in part pursuant to specific provisions of FOIA and the
Privacy Act. See Hardy Decl., Exh. B (3/18/2011 FOIA Response). These records were located
as a result of a search of the indices to the FBI’s Central Records System. See Hardy Decl., ¶¶ 6,
21-22.
Sennett administratively appealed the FBI’s determination on the release and withholding
of documents, and the agency’s decision was subsequently affirmed. See id., Exh. C (3/23/11
Appeal); Exh. E (Decision Affirming Appeal). Sennett then filed this suit on March 30, 2012,
alleging violations of FOIA and the Privacy Act. See Complaint, ¶¶ 4, 12-19. Before a briefing
schedule was set, Sennett received a letter from the FBI informing her that
[a]s a result of your litigation, we conducted a new search
of the indices to the Central Records System at FBI
Headquarters. The FBI identified one “197” file that
appears to be responsive to you as it pertains to Civil
Action Number 1:10-cv-01055, Laura Sennett v. United
States, et al., U.S. District Court for the Eastern District of
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Virginia. A “197” file is categorized as a civil litigation
file that contains material concerning the civil action that
you lodged against the U.S. government. The FBI does not
routinely process 197 files unless the requester specifically
requests us to do so because the file contains material sent
to and from the plaintiff and/or documents filed before the
court.
See Hardy Decl., Exh. F (7/11/2012 FBI Letter). Sennett requested that these documents be
produced, and they were released to her on February 28, 2013. See id., Exh. G (7/20/13 Letter
Requesting 197 File); Exh. H (2/28/13 FOIA Response). For this second production, 1,695
pages were reviewed, and 1,076 pages were released in full or in part. As with its previous
production, the FBI withheld a number of documents, this time pursuant to the Privacy Act,
FOIA exemptions, and a sealing Order in a civil case Sennett had filed in the Eastern District of
Virginia. See 2/28/13 FOIA Response.
Defendant then filed a Motion for Summary Judgment on June 3, 2013, accompanied by
a declaration describing the agency’s search efforts and withholdings. See Hardy Decl. The
matter is now fully briefed and ripe for decision.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477
U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely
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disputed must support the assertion” by “citing to particular parts of materials in the record” or
“showing that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a
court may grant summary judgment to a FOIA defendant based solely on information provided
in an agency’s affidavits or declarations when they “describe the justifications for nondisclosure
with reasonably specific detail, demonstrate that the information withheld logically falls within
the claimed exemption, and are not controverted by either contrary evidence in the record nor by
evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)
(citation omitted). 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. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal
quotation marks omitted). “Unlike the review of other agency action that must be upheld if
supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the
burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter
de novo.’” Dep’t of Justice v. Reporters Com. for the Freedom of the Press, 489 U.S. 749, 755
(1989) (quoting 5 U.S.C. § 552(a)(4)(B)).
III. Analysis
Defendant maintains that summary judgment is proper because its search was reasonably
calculated to return relevant records, it released all reasonably segregable material, and its
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withholdings were proper under a number of FOIA exemptions. See Mot. at 2. Plaintiff raises
three central challenges in response. First, Sennett claims that Defendant failed to conduct an
adequate search for responsive records because it did not search its electronic surveillance
indices. See Opp. at 11. Second, she asserts that the FBI failed to release reasonably segregable
records. See id. And finally, she contends that Defendant improperly withheld multiple records
pursuant to three specific FOIA exemptions. See id. at 1-11. Finding that the FBI has
discharged almost all of its responsibilities on those three fronts, the Court will substantially
grant Defendant’s Motion.
A. Adequacy of Search
FOIA requires government agencies to describe their searches in enough detail for a court
to determine whether the search was sufficiently exhaustive to satisfy the Act. Nation Magazine,
Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995); Oglesby v.
U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “An agency fulfills its obligations under
FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to
uncover all relevant documents.’” Valencia-Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C.
Cir. 1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also
Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). “[T]he issue to be resolved is
not whether there might exist any other documents possibly responsive to the request, but rather
whether the search for those documents was adequate.” Weisberg v. Dep’t of Justice, 745 F.2d
1476, 1485 (D.C. Cir. 1984) (emphasis in original). The adequacy of an agency’s search for
documents requested under FOIA “is judged by a standard of reasonableness and depends, not
surprisingly, upon the facts of each case.” Id. To meet its burden, the agency may submit
affidavits or declarations that explain the scope and method of its search “in reasonable detail.”
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Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). Absent contrary evidence, such affidavits or
declarations are sufficient to show that an agency complied with FOIA. See id. “If, however,
the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the
agency is not proper.” Truitt, 897 F.2d at 542.
The sole issue Plaintiff raises with respect to the adequacy of the FBI’s search is that the
Bureau did not look in its electronic surveillance (ELSUR) files for responsive records. See
Opp. at 11. Defendant maintains that it was not required to search this source because it was not
reasonably likely that the ELSUR indices would contain responsive records. See Reply at 16-18.
In so asserting, it provides additional information about the indices and the agency’s search,
including:
• “The FBI’s Electronic Surveillance (‘ELSUR’) Indices, a separate
system of records from the CRS, are used to maintain information
on subjects whose electronic and/or voice communications have
been intercepted as a result of electronic surveillance conducted by
the FBI,” Reply, Att. (Second Declaration of David M. Hardy), ¶
6;
• “The ELSUR Indices are comprised of four types of records:
Principal; Proprietary Interest; Intercept; and Reference records,”
id., ¶ 7 (including sub-paragraphs providing further detail on each
type of record); and
• “In responding to FOIA requests, the FBI searches those locations
where it determines responsive records are likely to be found. Most
FBI cases do not involve electronic surveillance, and so it is not
reasonably likely that responsive records will be found in the
ELSUR Indices in most instances. Accordingly, the FBI only
searches those indices when specifically asked to do so by a
requester or when there is some indication that there may be
responsive records in the indices, such as when there are references
in the investigative file to electronic surveillance.”
Id., ¶ 8.
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The declaration further explains that there was no reason to search the ELSUR indices
here because “Plaintiff did not request that the FBI search the ELSUR Indices for responsive
records,” id., ¶ 9; “[m]oreover, the FBI did not find any indication in the investigative files
containing information responsive to plaintiff’s FOIA request that the investigations involved
electronic surveillance. The video that plaintiff references in her response is a security video
from the Four Seasons Hotel, not a video resulting from electronic surveillance conducted by the
FBI.” Id., ¶ 10.
Based on the facts here and Defendant’s explanation as to why it was unlikely that
responsive records would be located in the electronic surveillance indices, the Court finds that
the agency’s decision not to search this source was reasonable. See Am. Immigration Council v.
U.S. Dep’t of Homeland Sec., 905 F. Supp. 2d 206, 214-215 (D.D.C. 2012) (agency’s
explanation sufficient where it had “justifiably conclude[d]” that challenged source probably did
not hold responsive records); Salas v. Office of Inspector Gen., 577 F. Supp. 2d 105, 110
(D.D.C. 2008) (acknowledging agency was not required to search every records system and
finding search adequate where “declarant adequately explains the agency’s reasons for limiting
the search to the [specific] database”). A plaintiff’s conjecture regarding possible sources that
have not been searched is not sufficient to undermine an agency’s position that responsive
documents would not be contained in a particular database. See Nicholls v. U.S. Office of
Personnel Mgmt., 863 F. Supp. 2d 4, 10 (D.D.C. 2012).
Because no other objections remain on this issue, Defendant is entitled to summary
judgment on the adequacy of the search.
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B. Segregability
Plaintiff’s second objection arises from the Hardy Declaration’s purported “fail[ure] to
analyze the segregability of the redacted documents, other than in conclusory fashion.” Opp. at
11. Defendant responds that it is entitled to a presumption of compliance with the segregability
requirement and that Plaintiff has failed to provide the “quantum of evidence” necessary to rebut
it. See Reply at 19. The Court agrees.
While the government is “entitled to a presumption that [it] complied with the obligation
to disclose reasonably segregable material,” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013),
this presumption of compliance does not obviate the government’s obligation to carry its
evidentiary burden and fully explain its decisions on segregability. See Mead Data Cent., Inc. v.
U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). The agency must provide “a
detailed justification and not just conclusory statements to demonstrate that all reasonably
segregable information has been released.” Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C.
2010) (internal quotation marks omitted); see also Armstrong v. Exec. Office of the President, 97
F.3d 575, 578 (D.C. Cir. 1996) (determining government affidavits explained nonsegregability of
documents with “reasonable specificity”). “Reasonable specificity” can be established through a
“combination of the Vaughn index and [agency] affidavits.” Johnson v. Exec. Office for U.S.
Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002).
The Hardy Declaration maintains:
• “Every effort was made to provide plaintiff with all material in the
public domain and with all reasonably segregable portions of
releasable material. No reasonably segregable, nonexempt portions
have been withheld from plaintiff. To further describe the
information withheld could identify the very material which the
FBI seeks to protect,” Hardy Decl., ¶ 26;
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• “The coded, Bates-numbered pages together with this declaration
demonstrate that all material withheld is exempt from disclosure
pursuant to FOIA exemptions, or is so intertwined with protected
material that segregation is not possible without revealing the
underlying protected material,” id., ¶ 27;
• “The FBI has processed and released all segregable information
from documents responsive to plaintiff's FOIA/Privacy Act request
that are subject to FOIA, and has properly withheld exempt
information pursuant to FOIA Exemptions 1, 3, 5, 6, 7(A), 7(C),
7(D), and 7(E),” id., ¶ 81; and
• “After extensive review of the documents at issue, I have
determined that there is no further reasonably segregable
information that can be released without revealing exempt
information.”
Id.
Although some of this language may appear generic, having reviewed the redacted
documents and the Hardy Declaration, the Court finds that no segregability problem exists here.
The documents have careful and pinpointed redactions of names, words, clauses, and sentences.
While a number of other documents have been withheld in their entirety, there is nothing to
suggest that there is material that could have been released on these pages. See, e.g., Mot., Exh.
I (FBI’s Production of Records in Response to FOIA Request), part I, at 110 (explaining Sennett
1660-1670 were being withheld in their entirety where numerous exemptions applied, including
the exemption for pending enforcement proceedings, (7)(A)). The Bureau, moreover, deserves
the benefit of the doubt when it has painstakingly segregated material on the produced
documents the Court has reviewed. Because the Court finds that the FBI has produced all
reasonably segregable materials and a supplemental declaration further addressing the issue of
segregability is unnecessary, the Court grants Defendant’s Motion on this issue.
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C. Propriety of Defendant’s Withholdings
Turning now to the applicability of the exemptions claimed, the Court will begin with
some general FOIA law and then discuss each exemption separately.
1. Background
FOIA provides that “each agency, upon any request for records which (i) reasonably
describes such records and (ii) is made in accordance with published rules . . . , shall make the
records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Nine categories of
information are exempt from FOIA’s broad rules of disclosure. 5 U.S.C. § 552(b)(1)-(9). These
exemptions are to be narrowly construed, see Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976), and the reviewing court must bear in mind that FOIA mandates a “strong presumption in
favor of disclosure.” Dep’t of State v. Ray, 502 U.S. 164, 173 (1991); Nat’l Ass’n of Home
Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002). This Court, accordingly, can compel the
release of any records that do not satisfy the requirements of at least one exemption. See
Reporters Com. for Freedom of the Press, 489 U.S. at 755.
FOIA was drafted with the objective of affording the public maximum access to most
government records. See Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). The
government, as a result, bears the burden of demonstrating that at least one exemption applies.
See id. In order to assist a court in its de novo review of the withholdings and to allow the party
seeking access to documents to engage in effective advocacy, the government must furnish
“detailed and specific information demonstrating ‘that material withheld is logically within the
domain of the exemption claimed.’” Campbell v. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir.
1998) (quoting King v. U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)). This allows
for “as full a public record as possible, concerning the nature of the documents and the
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justification for nondisclosure.” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381,
1384 (D.C. Cir. 1979). Time and again, courts in this Circuit have stressed that the government
cannot justify its withholdings on the basis of summary statements that merely reiterate legal
standards or offer “far-ranging category definitions for information.” King, 830 F.2d at 221; see
also Campbell, 164 F.3d at 30 (emphasizing that an agency’s explanations will not suffice if they
“‘are conclusory, merely recit[e] statutory standards, or if they are too vague or sweeping’”)
(quoting Hayden, 608 F.2d at 1387).
While FOIA’s individual exemptions impose their own tailored evidentiary burden, as a
starting point, the government must meet five overarching requirements for each withholding.
See King, 830 F.2d at 224. The government must:
(1) [I]dentify the document, by type and location in the body of
documents requested; (2) note that [a particular exemption] is
claimed; (3) describe the document withheld or any redacted
portion thereof, disclosing as much information as possible without
thwarting the exemption’s purpose; (4) explain how this material
falls within one or more of the categories . . . ; and [if the
exemption requires a showing of harm] (5) explain how disclosure
of the material in question would cause the requisite degree of
harm.
Id.As the D.C. Circuit noted in Lykins v. Dep’t of Justice, 725 F.2d 1455 (D.C. Cir. 1984),
the government’s documentary obligations not only enable the reviewing court to make an
informed and accurate determination, but they also allow the adversary system to operate
effectively and encourage transparency by “forc[ing] the government to analyze carefully any
material withheld.” Id. at 1463. Admittedly, this evidentiary burden is likely to create
significant costs for government agencies as they respond to FOIA requests; however, “[t]he
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costs must be borne . . . if the congressional policy embodied in FOIA is to be well served.”
Senate of the Com. of Puerto Rico v. U.S. Dep’t of Justice, 823 F.2d 574, 587 (D.C. Cir. 1987).
Against this backdrop, the Court will now consider the specific exemptions challenged by
Plaintiff.
2. Challenged Exemptions
While Defendant relies on numerous exemptions, Plaintiff challenges withholdings
pursuant to only three: Exemptions 1 (Classified Information), 3 (Information Protected by
Statute), and 7(D) (Confidential Source Information). See Opp. at 1-11. Because Plaintiff raises
no objection with respect to the remaining exemptions – namely, Exemptions 5 (Privileged
Information), 6 and 7(C) (Clearly Unwarranted Invasion of Privacy and Unwarranted Invasion of
Personal Privacy), 7(A) (Pending Enforcement Proceedings), and 7(E) (Law Enforcement
Investigative Techniques and Procedures) – the Court will deem any challenges to documents
withheld pursuant to those exemptions to be forfeited. See Hopkins v. Women’s Div., Gen. Bd.
of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit
that when a plaintiff files an opposition to a dispositive motion and addresses only certain
arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to
address as conceded.”), aff’d 98 F. App’x 8 (D.C. Cir. 2004).
a. Exemption 1
Plaintiff begins by attacking the withholding of materials pursuant to Exemption 1. This
exemption applies to materials that are “specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or foreign policy and . . . are
in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). An agency
may invoke Exemption 1 to withhold records “only if it complies with classification procedures
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established by the relevant executive order and withholds only such material as conforms to the
order’s substantive criteria for classification.” King, 830 F.2d at 214; see also Lesar v. Dep’t of
Justice, 636 F.2d 472, 483 (D.C. Cir. 1980) (“To be classified properly, a document must be
classified in accordance with the procedural criteria of the governing Executive Order as well as
its substantive terms.”).
While the Hardy Declaration discusses in detail how the FBI complied with the
requirements of Exemption 1, see Hardy Decl., ¶¶ 31-39, the Court need not analyze such
compliance. This is because all relevant documents covered by Exemption 1 were also withheld
under Exemption 7(E):
The classified information withheld on Sennett-1622, 1660-1670,
and 1676-1682 contains detailed intelligence activity information
gathered or compiled by the FBI about a specific individual or
organization of national security interest. The disclosure of this
information could reasonably be expected to cause serious damage
to the national security, as it would: (a) reveal the actual
intelligence activity or method utilized by the FBI against a
specific target; (b) disclose the intelligence-gathering capabilities
of the method; and (c) provide an assessment of the intelligence
source penetration of a specific target during a specific period of
time. This information is properly classified at the “Secret” level,
withheld pursuant to E.O. 13526, § 1.4(c), and is exempt from
disclosure pursuant to Exemption 1. The FBI also protected this
information pursuant to FOIA Exemption 7(E), as discussed infra.
Id., ¶ 39 (emphasis added). Plaintiff does not separately challenge whether the documents were
properly redacted or withheld pursuant to Exemption 7(E). Because there is an independent,
unchallenged exemption upon which these few documents could be withheld, the Court will not
consider the Exemption 1 challenge.
b. Exemption 3
Exemption 3 covers records “specifically exempted from disclosure by statute . . .
[provided that such statute either] (A)(i) requires that the matters be withheld from the public in
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such a manner as to leave no discretion on the issue; or (A)(ii) establishes particular criteria for
withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3).
Defendant invokes this exemption based on the Pen Register statute, 18 U.S.C. § 3123, and
Federal Rule of Criminal Procedure 6(e), which governs grand jury information. Both the statute
and the rule leave the Court no discretion.
First, as to pen-register information, the FBI contends that it “properly applied
Exemption 3 to withhold the identities and phone numbers of the individuals subject to pen
registers in this case, because it is precluded from disclosing such information pursuant to 18
U.S.C. § 3123.” See Hardy Decl., ¶ 41; see also id. n.7 (citing specific pages subject to this
exemption). The nondisclosure provision of this statute states that
[a]n order authorizing or approving the installation and use of a
pen register or a trap and trace device shall direct that (1) the order
be sealed until otherwise ordered by the court; and (2) the person
owning or leasing the line or other facility to which the pen register
or a trap and trace device is attached, or applied, or who is
obligated by the order to provide assistance to the applicant, not
disclose the existence of the pen register or trap and trace device or
the existence of the investigation to the listed subscriber, or to any
other person, unless or until otherwise ordered by the court.”
§ 3123(d).
Plaintiff contends that this statute cannot support withholdings pursuant to Exemption 3.
See Opp. at 4-7. She offers no authority, however, for such a position, see Opp. at 7, nor does
she explain why other district courts have erred in holding the contrary. See, e.g., Brown v. FBI,
873 F. Supp. 2d 388, 401 (D.D.C. 2012) (pen-register information properly withheld under
exemption 3); Roberts v. FBI, 845 F. Supp. 2d 96, 101-102 (D.D.C. 2012) (same); Manna v.
Dep’t of Justice, No. 93-81, 1994 WL 808070, at *6-7 (D.N.J. April 13, 1994) (same).
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Even if this statute could protect such information, Plaintiff maintains Defendant should
be ordered to produce a more detailed Vaughn declaration explaining whether the pen-register
orders in question were under seal and specifying what material was being withheld pursuant to
this exemption. See Opp. at 4-7. Both pieces of information, however, have already been set
forth by the FBI. The Hardy Declaration clearly states that the pen-register information was
“subject to a sealing order by the court.” See Hardy Decl., n.7. Additionally, it describes the
material being withheld as information that would reveal “the identities and phone numbers of
the individuals subject to pen registers in this case.” See id. ¶ 41. As the material Plaintiff seeks
to have disclosed has already been provided, no supplementation is necessary.
Second, the FBI relies on Federal Rule of Criminal Procedure 6(e), which bars the
disclosure of matters occurring before a grand jury. See Fed. R. Crim. P. 6(e)(2)(B). Because it
was affirmatively enacted by Congress, Rule 6(e) is recognized as a “statute” for Exemption 3
purposes. See Fund for Constitutional Gov’t. v. Nat’l Archives & Records Serv., 656 F.2d 856,
867 (D.C. Cir. 1981). The Rule’s grand-jury-secrecy requirement is applied broadly and
embraces any information that “tend[s] to reveal some secret aspect of the grand jury’s
investigation, [including] the identities of witnesses or jurors, the substance of testimony, the
strategy or direction of the investigation, the deliberations or questions of jurors, and the like.”
Lopez v. Dep’t. of Justice, 393 F.3d 1345, 1349 (D.C. Cir. 2005) (internal quotation marks
omitted). In the absence of a statutory exception to the general presumption of grand jury
secrecy, Rule 6 is “quite clear that disclosure of matters occurring before the grand jury is the
exception and not the rule,” and “the rule’s ban on disclosure is for FOIA purposes absolute and
falls within . . . Exemption 3.” Fund for Constitutional Gov’t., 656 F.2d at 868.
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Defendant describes the documents withheld under this exemption in the following
manner:
In the investigative files responsive to plaintiffs request,
information that reveals matters occurring before a Federal Grand
Jury has been withheld pursuant to Exemption 3, in conjunction
with Rule 6(e). This information consists of the names of
recipients of Federal Grand Jury subpoenas; information that
identifies specific records subpoenaed by the Federal Grand Jury;
and copies of specific records received in response to Federal
Grand Jury subpoenas. Any disclosure of this information would
clearly violate the secrecy of the grand jury proceedings and could
reveal the inner workings of the Federal Grand Jury, and thus, the
FBI is precluded from disclosing it. Accordingly, the FBI properly
withheld this information pursuant to Exemption 3, in conjunction
with Rule 6(e).
Hardy Decl., ¶ 42; see also id. n.8 (identifying pages withheld pursuant to this exemption).
Plaintiff contends that “the government did not provide any detail to allow this court to
determine whether the specific records at issue in this case would in fact reveal the inner
workings of the grand jury,” and she urges the Court to conduct an inquiry into whether such a
nexus exists. See Opp. at 9. Additionally, Plaintiff maintains that the “special circumstances”
exception to grand jury secrecy may require disclosure of these materials, as the information is
“undoubtedly of historical interest.” See id. at 10. This exception – rooted in the court’s
inherent supervisory authority over court records – has permitted the release of documents that
are of special “historical significance,” such as the grand jury testimony of President Richard
Nixon. See In re Nichter, No. 12-MC-74, 2013 WL 2544410, at *5-7 (D.D.C. June 11, 2013)
(describing exception).
Defendant has supplemented its explanation regarding these documents in the Second
Hardy Declaration as follows:
To clarify, documents obtained by the FBI independent of the
grand jury were not withheld pursuant to Exemption 3, in
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conjunction with Rule 6(e) of the Federal Rules of Civil Procedure.
Rather, to reiterate what I stated in my previous declaration in this
case, see Dkt. No. 18 at ¶ 42, the FBI relied on Exemption 3, in
conjunction with Rule 6(e), to withhold records that were received
in response to a grand jury subpoena because disclosure of such
information – as well as the identities of persons and the specific
records subpoenaed by the grand jury – would reveal the focus and
scope of the grand jury’s investigation, thus revealing the inner
workings of the grand jury and violating the secrecy of grand jury
proceedings.
Id., ¶ 5.
The documents Defendant describes fall squarely within this exemption because they
would “tend to reveal some secret aspect of the grand jury’s investigation [of] such matters,”
Senate of Puerto Rico, 823 F.2d at 582 (internal quotation marks omitted), and are not merely
“information coincidentally before the grand jury.” Fund for Constitutional Gov’t, 656 F.2d at
870; see also Light v. Dep’t of Justice, No. 12-1660, 2013 WL 3742496, 8 (D.D.C. July 17,
2013) (records subpoenaed by grand jury exempt under Exemption 3); Georgacarakos v. FBI,
908 F. Supp. 2d 176, 182 (D.D.C. 2012) (“information that identifies specific records or
evidence subpoenaed by the Federal Grand Jury” protected under Exemption 3); Singh v. FBI,
574 F. Supp. 2d 32, 45 (D.D.C. 2008) (finding records subpoenaed by grand jury were within
scope of Exemption 3).
Additionally, the Court rejects Plaintiff’s invitation to recognize the “special
circumstances” doctrine here, as she has failed to provide the Court with any authority to suggest
that the facts in this case implicate that rare exception. See, e.g., In re Nichter, 2013 WL
2544410, at *5-7 (finding special circumstances did not support disclosure of materials related to
grand jury proceeding); In re Shepard, 800 F. Supp. 2d 37, 40 (D.D.C. 2011) (cautioning that
exception “applies only in exceptional circumstances, requiring a nuanced and fact-intensive
assessment,” and “is not intended for indiscriminate application”).
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The Court will thus grant judgment in Defendant’s favor as to this exemption.
c. Exemption 7(D)
Exemption 7(D) protects from disclosure “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 disclose the identity of a confidential source . . .
[who] furnished information on a confidential basis, and, in the case of a record or information
compiled by criminal law enforcement authority in the course of a criminal investigation,
information furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D). “A source is
confidential within the meaning of exemption 7(D) if the source provided information under an
express assurance of confidentiality or in circumstances from which such an assurance could be
reasonably inferred.” Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (internal quotation
marks omitted).
“[I]t is not enough for the [FBI] to claim that all sources providing information in the
course of a criminal investigation do so on a confidential basis.” Roth v. Dep’t of Justice, 642
F.3d 1161, 1184 (D.C. Cir. 2011). The analysis must be more searching. For example,
[w]hen no express assurance of confidentiality exists, courts
consider a number of factors to determine whether the source
nonetheless spoke with an understanding that the communication
would remain confidential. These factors include the character of
the crime at issue, the source’s relation to the crime, whether the
source received payment, and whether the source has an ongoing
relationship with the law enforcement agency and typically
communicates with the agency only at locations and under
conditions which assure the contact will not be noticed. Even
when the FBI contends that a source received an express assurance
of confidentiality, it must, in order to permit meaningful judicial
review, present sufficient evidence that such an assurance was in
fact given.
Id. (citations and internal quotation marks omitted). It is also important to note that, unlike
Exemption 7(C), “Exemption 7(D) requires no balancing of public and private interests. If the
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FBI’s production of criminal investigative records ‘could reasonably be expected to disclose the
identity of a confidential source’ or ‘information furnished by’ such a source, that ends the
matter, and the FBI is entitled to withhold the records under Exemption 7(D).” Id. at 1184-85(citation omitted) (quoting 5 U.S.C. § 552(b)(7)(D)).
The Hardy Declaration acknowledges that there was no express assurance here; instead, it
relies on inferred confidentiality. See Hardy Decl., ¶ 70. After describing generally the way in
which confidential sources assist the FBI and the need for such sources to remain confidential,
see id., ¶¶ 68-69, the Declaration then turns to a more detailed discussion of the specific
information withheld here:
In Category (b)(7)(D)-1, the FBI protected the names, identifying
information for, and information provided by third parties under
circumstances in which confidentiality can be inferred. These third
parties provided information concerning the activities of subjects
who were of investigative interest to the FBI or other law
enforcement agencies. These third party sources provided specific
detailed information that is singular in nature concerning the
activities of certain subjects regarding the FBI’s investigation. The
disclosure of the identities of these sources and the information
they provided could have disastrous consequences because
disclosure could subject these third parties, as well as their
families, to embarrassment, humiliation, and/or physical or mental
harm. These third parties provided information of value to the FBI
concerning its investigation, and in doing so, have placed
themselves in harm’s way should their identity and cooperation
with the FBI become known. Specifically, in the FBI’s
experience, sources providing information to the FBI about
extremist activities, such as anarchist extremism, do so at great
peril to themselves and have faced retaliation and threats
(including death threats) when their assistance to the FBI has been
publicly disclosed. Under these circumstances, the third parties
had reason to believe that their identities and the information they
provided would not be publicly revealed by the FBI in response to
FOIA or Privacy Act requests. Thus, the FBI implicitly granted
these third parties confidentiality with respect to their cooperation
in the investigation(s), and properly protected the sources’
identities and the information they provided pursuant to Exemption
7(D).
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Id., ¶ 70.
While recognizing the FBI’s concerns in divulging too much information regarding its
confidential sources, the Court agrees with Sennett that the details in this description “are so
sparse that Plaintiff does not have” sufficient information to challenge whether the circumstances
support an inference of confidentiality. See Opp. at 11. While the FBI has explained the
character of the crime at issue, it has not provided any information on the other Roth factors. At
a minimum, there must be some mention of the source’s relation to the crime. See Miller v.
Dep’t of Justice, 872 F. Supp. 2d 12, 27 (D.D.C. 2012) (“[t]he nature of the crime investigated
and informant’s relation to it are the most important factors in determining whether implied
confidentiality exists”). The Court appreciates the importance of protecting confidential sources
and does not anticipate that the additional disclosures will be particularly burdensome. That
said, the Court cannot sanction the withholdings under Exemption 7(D) as the record now stands.
Defendant shall therefore release the documents withheld pursuant to this exemption or file a
subsequent summary judgment motion supported by adequate declarations.
D. Privacy Act
Although the FBI claimed the protection of Privacy Act Exemption j(2) in the documents
released to Sennett, this exemption was not, in fact, used to justify the withholding of any
information challenged here. See Hardy Decl., ¶ 25 (stating that “the FBI processed documents
responsive to her request under the FOIA to achieve maximum disclosure”). Therefore, this
Court does not reach the issue of the propriety of the FBI’s invocation of Privacy Act
Exemption (j)(2).
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IV. Conclusion
For the forgoing reasons, the Court will grant Defendant’s Motion for Summary
Judgment in substantial part and deny it as to Exemption 7(D) only. A separate Order consistent
with this Opinion will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: August 27, 2013
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