Citizens for Responsibility and Ethics in Washington v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY
AND ETHICS IN WASHINGTON
Plaintiff,
v. Civil Action No. 13-1159 (GK)
UNITED STATES DEPARTMENT
OF JUSTICE
Defendant.
MEMORANDUM OPINION
Plaintiff Citizens for Responsibility and Ethics in
Washington ("Plaintiff" or "CREW") brings this action against the
Federal Bureau of Investigation ("FBI"), a component of the United
States Department of Justice ("Defendant" or "DOJ"), under the
Freedom of Information Act ("FOIA"), 5 u.s.c. § 552. This matter
is currently before the Court on the Parties' Cross-Motions for
\
Summary Judgment.
CREW seeks records concerning drone and Unmanned Aerial
Vehicle ("UAV") use by the FBI from January 1, 2009, onward. The
FBI conducted a search for records responsive to CREW' s FOIA
request, produced documents to CREW, and provided a Vaughn index
of FOIA's several exemptions. CREW challenges the FBI' s
application of FOIA Exemptions 1, 3, 4, 5, and 7(E) to withhold
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certain responsive information. CREW also alleges that the FBI
failed to segregate and release all non-exempt information
responsive to CREW's FOIA request.
Upon consideration of Defendant's Motion for Summary Judgment
("Def. 's Mot.") [Dkt. No. 17], Plaintiff's Cross-Motion for
Summary Judgment ("Pl. ' s Mot." ) [Dkt. No. 19], Defendant's
Opposition and Reply ("Def. 's Opp'n") [Dkt. No. 23]; Plaintiff's
Reply ("Pl.' s Reply") [Dkt. No. 25] , supplemental memoranda, and
the entire record herein, and for the reasons stated below,
Plaintiffs' Motion for Summary Judgment shall be denied and
Defendant's Motion for Summary Judgment shall be granted.
I . BACKGROUND
A. FOIA
FOIA was enacted by Congress "to ensure an informed citizenry,
vital to the functioning of a democratic society." Critical Mass
Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872
(D.C. Cir. 1992) ("Critical Mass III"), cert. denied, 507 U.S. 984
(1993) (citing FBI v. Abramson, 456 U.S. 615, 621 (1982)). "In
enacting FOIA, Congress struck the balance it thought right- -
generally favoring disclosure, subject only to a handful of
specified exemptions--and did so across the length and breadth of
E~FeaeraI Government." Milner v. Dep' t of the Navy, 562 U.S.
562, 571 n.5 (2011). FOIA's "basic purpose reflect[s] a general
philosophy of full agency disclosure unless information is
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exempted under clearly delineated statutory language." Dep' t of
the Air Force v. Rose, 425 U.S. 352, 360-361 (1976) (internal
citations and quotation marks omitted) .
When an agency receives a request for records, the agency
must conduct a sufficient search within the scope of the request.
5 U.S.C. § 552(a) (3). The agency then must furnish the information
in a timely manner, unless the information is precluded from
disclosure by one of FOIA's nine exemptions. Id. § 552(b). FOIA's
"goal is 'broad disclosure'" and thus "the exemptions must be
'given a narrow compass."' Milner, 562 U.S. at 563 (citing U.S.
Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989)). The
Government always bears the burden of proving that exemptions apply
to any responsive information that it withholds. 5 U.S.C.
§ 552(a) (4) (B).
B. Factual Background
1. CREW'S FOIA Request
On June 26, 2013, CREW submitted a FOIA request for documents
("FOIA Request"), Def.'s Ex. A [Dkt. No. 17-2], to the FBI. CREW'S
request sought four categories of documents:
1. Records sufficient to show the source or sources of all
drones used by the FBI from January 1, 2009, to the present;
2. Records suf f-iClent to show the funding source for all
drones used by the FBI from January 1, 2009, to the present,
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•.. ·
including specific appropriations and non-appropriated
sources of funds used for this purpose;
3. Records sufficient to show who provided the FBI with any
training to enable the FBI to use drones; and
4. Records reflecting or discussing any policy concerning the
FBI' s use of drones for any purpose, including but not
limited to the legal justification for such use, and any
memos of understanding between the FBI or DOJ and any other
government agency or entity.
FOIA Request at 1.
CREW also requested that the FBI expedite the processing of
CREW's request pursuant to 5 U.S.C. § 552(a) (6) (E) (i) and 28 C.F.R.
§§ 16.5(d) (1) (ii), (iv). FOIA Request at 4-5. CREW explained that
there was particular urgency to inform the public about the FBI's
use of drones to conduct domestic surveillance and that it was a
matter of widespread and exceptional media interest. Id. The FBI
denied CREW's request for expedition by letter on July 3, 2013.
See Def.'s Ex. D [Dkt. No. 17-2].
Plaintiff filed its Complaint ( "Compl.") in this matter on
July 30, 2013 [Dkt. No. 1]. On February 4, 2014, the Court ordered
that the FBI process at least 1,500 pages of responsive records
per month [Dkt. No. 12]. Between November 27, 2013, and May 30,
2014, the FBI made six interim releases and one supplemental
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release of records. See Defendant's Statement of Material Facts
("Def.'s Statement of Facts") , 4 [Dkt. No. 17].
On June 16, 2014, the parties filed a Joint Status Report in
which the FBI informed the Court that it had finished processing
CREW's FOIA request. See Joint Status Report, 2 [Dkt. No. 14]. In
total, the FBI identified 6,720 non-duplicative pages of
responsive documents, of which it released 1,970 in whole or in
part. The rest were withheld in their entirety as exempt under
several of FOIA's exemptions. Id.; see also 5 u.s.c. § 552(b).
c. Procedural Background
On October 15, 2014, DOJ filed its Motion for Summary Judgment
("Def.'s Mot.") [Dkt. No. 17]. On January 5, 2015, CREW filed its
Opposition and Cross-Motion for Summary Judgment ( "Pls.' Mot.")
[Dkt. No. 19]. On February 13, 2015, DOJ filed its Opposition and
Reply ("Def.'s Opp'n") [Dkt. No. 23] On March 23, 2015, CREW filed
its Reply ("Pl.'s Reply") [Dkt. No. 25]. CREW filed a Supplemental
Memorandum ("Supp. Mem.") [Dkt. No. 26] on March 31, 2015, and DOJ
filed a Response on April 14, 2015 ("Supp. Response") [Dkt. No.
27] .
Defendant contends that the FBI released all responsive
records to CREW's FOIA request and properly withheld information
pursuant to FOIA exemptions 1, 3, 4, 5, 6, 7(C), and 7(E). CREW
challenges the FBI's application of FOIA Exemptions 1, 3, 4, 5,
and 7(E) only. It does not challenge withholdings under Exemptions
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6 or 7(C). CREW also alleges that the FBI failed to segregate and
release non-exempt information responsive to CREW'S FOIA request.
II. STANDARD OF REVIEW
A. Summary Judgment
Summary judgment should be granted only if the moving party
has shown that there is no genuine dispute of material fact and
that the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991
(D. C. Cir. 2002) . "A fact is material if it 'might affect the
outcome of the suit under the governing law,' and a dispute about
a material fact is genuine 'if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.'"
Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "FOIA
cases typically and appropriately are decided on motions for
summary judgment." Defs. of Wildlife v. U.S. Border Patrol, 623 F.
Supp. 2d 83, 87 (D.D.C. 2009).
"To prevail on summary judgment [against a FOIA challenge] ,
the defending 'agency must show beyond material doubt [] that it
has conducted a search reasonably calculated to uncover all
relevant documents.'" Morley v. CIA, 508 F.3d 1108, 1114 (D. C.
Cir. 2007) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d
1344, 1351 (D.C. Cir. 1983)). "Summary judgment may be based on
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affidavit, if the declaration sets forth sufficiently detailed
information 'for a court to determine if the search was adequate. '"
Students Against Genocide v. Dep't of State, 257 F.3d 828, 838
(D.C. Cir. 2001) (quoting Nation Magazine v. U.S. Customs Serv.,
71 F.3d 885, 890 (D.C. Cir. 1995)).
If an agency denies disclosure of responsive records, either
in whole or in part, based upon FOIA exemptions, it then "bears
the burden of proving the applicability of claimed
exemptions." Arn. Civil Liberties Union v. U.S. Dep't of Def., 628
F.3d 612, 619 (D.C. Cir. 2011). "The government may satisfy its
burden . by submitting appropriate declarations and, where
necessary, an index of the information withheld [(known as a
"Vaughn index")]." Arn. Immigration Lawyers Ass'n v. U.S. Dep't of
Homeland Sec., 852 F. Supp. 2d 66, 72 (D.D.C. 2012) (citing Vaughn
v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973)).
There is no set formula for a Vaughn index or declarations,
but they must "provide[] a relatively detailed justification [for
any nondisclosure] , specifically identif [y] the reasons why a
particular exemption is relevant and correlat[e] those claims with
the particular part of a withheld document to which they apply."
Judicial Watch, Inc. v. Food & Drug Adrnin., 449 F.3d 141, 146 (D.C.
Cir. 2006) (quoting Mead Data Cent., Inc. v. Dep't of Air Force,
566 F.2d 242, 251 (D.C. Cir. 1977)). But, "exemptions from
disclosure must be narrowly construed and conclusory and
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generalized allegations of exemptions are unacceptable." Morley,
508 F.3d at 1114-15 (internal quotation marks and citations
omitted).
III. ANALYSIS
A. Sufficiency of the Search for Responsive Records
As mentioned above, to prevail in a summary judgment motion,
an agency "must demonstrate that it has conducted a search
reasonably calculated to uncover all relevant documents." See
Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C.
Cir. 1994) (quoting Weisberg, 745 F.2d at 1485).
DOJ has detailed the steps the FBI took in conducting the
search, the databases searched, and additional measures taken. See
Def.' s Mot. at 4-5. The Declaration of David M. Hardy ("Hardy
Deel.") [Dkt. No. 17-1] provides additional details regarding the
steps the FBI undertook in conducting its search for documents.
CREW does not challenge the reasonableness of the FBI's search for
responsive documents and the Court concludes that the FBI's search
was reasonable and adequate.
B. FOIA Exemptions
CREW argues that DHS improperly withheld and redacted
documents under various FOIA exemptions. The Court will consider
each exemption in turn. For all of FOIA's exemptions, the burden
of proof lies with DOJ to show proper application of the Exemption.
5 U.S.C. § 552 (a) (4) (B). The Court makes a presumption of good
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faith on behalf of agency affidavits purporting to meet DOJ' s
burden. Negley v. FBI, 169 Fed. Appx. 591, 594 (D.C. Cir. 2006).
"Ultimately, an agency's justification for invoking a FOIA
exemption is sufficient if it appears 'logical' or 'plausible."'
Am. Civil Liberties Union, 628 F.3d at 619 (quoting Larson v. Dep't
of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). Thus, "summary
judgment may be granted on the basis of agency affidavits if they
contain reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into question by
contradictory evidence in the record or by evidence of agency bad
faith." Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980)
1. FOIA Exemption 1
FOIA Exemption 1 precludes disclosure of documents that are
"(A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order." 5 u.s.c. § 552(b) (1).
It is undisputed that the requirements for classifying
information relevant to this request are contained in Executive
Order 13,526 ("E.O. 13,526"). See Def.'s Mot. at 7-8 (citing Exec.
Order No. 13,526, 75 FR 707 (Dec. 29, 2009) (codified at 32 C.F.R.
Parts 2001 and 2003)); Pl.'s Mot. at 13. Executive Order 13,526
provides that information may be classified if:
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(1) an original classification authority is classifying
the information;
(2) the information is owned by, produced by or for, or
is under the control of the United States Government;
( 3) the information falls within one or more of the
categories of information listed in section 1.4 of [E.O.
13,526]; and
(4) the original classification authority determines
that the unauthorized disclosure of the information
reasonably could be expected to result in damage to the
national security, which includes defense against
transnational terrorism, and the original classification
authority is able to identify or describe the damage.
E.O. 13,526 § 1.1.
The FBI withheld two categories of classified information
pursuant to FOIA Exemption 1: (1) intelligence activities,
sources, and methods (E.O. 13, 526 § 1.4 (c)); and (2) foreign
relations or foreign activities (E.O. 13,526 § 1.4(d)). See Hardy
Deel. ~ 40.
a. Intelligence Activities, Sources and Methods
Information that "pertains" to "intelligence activities
(including covert action) , intelligence sources or methods, or
cryptology," which, if disclosed, could cause damage to the
national security, is eligible for classification. E.O. 13,526 §
1.4(c). Our Court of Appeals has noted that "'pertains' is 'not a
very demanding verb.'" Judicial Watch, Inc. v. U. s. Dep' t of
Defense, 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting Judicial
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Watch, Inc. v. U.S. Dep't of Defense, 857 F. Supp. 2d 44, 60
(D.D.C. 2012)).
"Intelligence" includes foreign intelligence and
counterintelligence, as defined by Executive Order 12,333. E.O.
13,526 § 6.l(x). "Foreign Intelligence" is defined as "information
relating to the capabilities, intentions, or activities of foreign
governments or elements thereof, foreign organizations, foreign
persons, or international terrorists." Exec. Order No. 12,333, 46
FR 59941 (December 4, 1981), § 3.5(e), as amended by Exec. Order
Nos. 13,284 (January 23, 2003), 13,355 (August 27, 2004) and 13,470
(July 30, 2008). "Counterintelligence" is defined as "information
gathered and activities conducted to identify, deceive, exploit,
disrupt, or protect against espionage, other intelligence
activities, sabotage, or assassinations conducted for or on behalf
of foreign powers, organizations, or persons, or their agents, or
international terrorist organizations or activities." Id. at
§ 3.5(a). By definition, "intelligence" requires a foreign
component.
DOJ argues that the information withheld under Exemption 1
would "reveal the actual intelligence activities and methods used
by the FBI against specific targets of foreign counterintelligence
investigations or operations; would identify a target of a foreign
counterintelligence investigation; and/or would disclose the
intelligence gathering capabilities of the activities or methods
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directed at specific targets." Def.' s Mot. at 10; Hardy Deel. ~ 42.
DOJ further states that these activities and methods are still
used by the FBI and the information is related to the development
of sources and methods related to UAV technology. Def.' s Mot ..
at 10.
DOJ also contends that disclosure of this information could
reasonably be expected to cause harm to national security for
several reasons. Id. First, disclosure would reveal current
intelligence-gathering methods being used by the FBI. Second,
disclosure would reveal current specific targets of the FBI' s
national security investigations. Third, disclosure would reveal
criteria and priorities assigned by the FBI to conduct intelligence
and counterintelligence investigations. Fourth, disclosure would
reveal the capabilities and limitations of the UAVs used, which
would diminish their usefulness as an intelligence asset. Fifth,
disclosure would reveal operational partners of the FBI who are
intelligence sources. Finally, disclosure would reveal information
about FBI UAV intelligence-gathering methodology. Id.; Hardy Deel.
~ 43.
CREW counters that "the domestic use of drones by the FBI
does not constitute an 'intelligence activity'- or
'intelligence sources or methods' within the meaning of E.O.
13,526." Pl. 's Mot. at 13 (emphasis in original). CREW's first
objection is in response to DOJ's statement that the intelligence
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activities and methods at issue here are "used by the FBI against
specific targets o[f] foreign counterintelligence investigations
or operations[.]" Pl.'s Mot. at 14 (quoting Hardy Deel. ~ 42).
CREW emphasizes that its FOIA request does not concern FBI drone
use abroad--only domestic use --and therefore does "not implicate,
much less compromise, foreign intelligence activities and
methods." Id. at 15. CREW also argues that former FBI Director
Robert Mueller's statements to Congress are inconsistent with the
FBI's statement in this case that some of the Exemption 1 documents
withheld relate to foreign counterintelligence investigations. See
Pl.'s Reply at 2; see also Pl.'s Mot. at 3-4 (describing Director
Mueller's Congressional testimony and the FBI's follow-up
responses) .
First, despite CREW'S assertions, its FOIA Request relates to
"all drones used by the FBI" (emphasis added) , without
differentiating between foreign and domestic use. 1 FOIA Request at
1. Second, Director Mueller's testimony is not inconsistent with
the FBI' s statement that withheld documents relate to foreign
counterintelligence investigations. In response to written follow-
1 Even if Plaintiffs were only seeking information limited to
a-ome-st-rc--dron-e-u-s-e-,-crn-d-evE:m-i-f aome S c:Lc-use_d_i_d-mJt-imp-1-Tc-crte
foreign intelligence, it is unlikely that information about
domestic use can be separated from information about foreign use.
The two overlap and revealing information about domestic sources
and methods would necessarily reveal the sources and methods for
foreign use, which is classified and exempt.
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up questions after the Congressional hearing, the FBI reported
that it had used "UA[V]S in eight criminal cases and two national
security cases." Pl.'s Mot. at 4 (citing Ex. A, Responses of the
Federal Bureau of Investigation to Questions for the Record Arising
from the June 19, 2013, Hearing Before the Senate Committee on the
Judiciary Regarding "Oversight of the FBI" ("Hearing Responses")
[Dkt. No. 19-2]). "National security cases" is a broad category
and by no means excludes foreign counterintelligence activities.
In addition, the FBI's statutory duties include protecting
the United States from terrorism and threats to national security,
as well as furthering the foreign intelligence objectives of the
United States. Def.'s Opp'n at 2 (citing Hardy Deel. ~ 66); see
also FBI, Quick Facts, www.fbi.gov/about-us/quick-facts (last
visited November 17, 2015). It logically follows that the FBI's
use of drones relate to issues of national security and the
intelligence activities of the United States.
CREW next argues that the FBI's domestic drone program does
not constitute an "intelligence activity, source, or method."
Pl.'s Mot. at 15. CREW contends that "[u]sing drones to locate
victims of kidnapping and search and rescue operations has nothing
to do with 'securing . . . data pertaining to foreign governments
or the national defense and security of the United States." Id.
(emphasis added in Pl.'s Mot.) (quoting CIA v. Sims, 471 U.S. 159,
171 (1985)).
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Sims does not support CREW's argument. First, the quote is
not from the Supreme Court itself, but rather from a Senate
hearing. See Sims, 471 U.S. at 171. When the quote above is read
in context, it is clear that "data" is meant to be synonymous with
"information," and is not meant to limit the type or form of
information. See id. at 170-71. The omitted portion of the Sims
quote refers to "all possible data," and the Supreme Court's
holding takes an expansive view of what constitutes an
"intelligence source." Id. at 170-171 (emphasis added) (CIA
gathers "intelligence from almost an infinite variety of diverse
sources") . Sims simply does not support a narrow reading of
"intelligence activities."
CREW thus fails to rebut Defendant's claims of exemption.
Defendant has, as discussed above, explained how the withheld
information relates to intelligence activities and sources that,
if disclosed, could reasonably be expected to cause harm to the
United States' national security interests. The Court holds that
DOJ has carried its burden and that these documents were properly
exempted from production.
b. Foreign Relations or Foreign Activities
Next, CREW argues that the documents were improperly withheld
under Exemption 1 because they do not pertain to the foreign
activities of the United States. Pl.'s Mot. at 13 (quoting Judicial
Watch, 715 F.3d at 941).
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As discussed above, although CREW characterizes its FOIA
request as pertaining exclusively to the FBI' s domestic drone
program, any such limitation is absent from the FOIA Request
itself. See Id. ; FOIA Request. While the FBI' s public comments
describe its drone use as supporting "missions related to
kidnappings, search and rescue operations, drug interdictions, and
fugitive investigations," the FBI also stated that drones have
been used in "two national security cases." Hearing Responses at 7.
In short, the FBI's comments do not rule out the possibility of
drone use pertaining to foreign activities or foreign relations.
DOJ claims that the information withheld "contains sensitive
intelligence information gathered by the United States either
about or from a foreign country." Def.'s Mot. at 11 (quoting Hardy
Deel. ~ 4 6) . DOJ states that disclosure "could jeopardize the
fragile relationships that exist between the United States and
certain foreign governments." Def.'s Mot. at 11. DOJ lists several
additional harms that can be expected from disclosure of
information concerning foreign relations or foreign activities of
the United States. See Def.'s Mot. at 11-12; Hardy Deel. `` 46-
47.
CREW also fails to rebut DOJ's claims of exemption for foreign
activities. DOJ has asserted that the documents implicate foreign
relations and/or foreign activities, and have adequately described
the potential harms that would result from disclosure.
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2. FOIA Exemption 3
FOIA Exemption 3 precludes release of information that has
been:
specifically exempted from disclosure by [another]
statute [that] (i) requires that the matters be
withheld from the public in such a manner as to leave no
discretion on the issue; or (ii) establishes particular
criteria for withholding or refers to particular types
of matters to be withheld.
5 U.S.C. § 552(b) (3). In determining whether Exemption 3 properly
applies, the Court conducts a two-part test that considers: whether
"[1] the statute in question [is] a statute of exemption as
contemplated by exemption 3 . . [and whether] [2] the withheld
material satisf [ies] the criteria of the exemption statute."
Fitzgibbon v. CIA, 911 F.2d 755, 761 (D.C. Cir. 1990) (citing Sims,
471 U.S. at 167).
Defendant has withheld documents under Exemption 3 based on
Section 102A(i) (1) of the National Security Act of 1947 ("NSA"),
50 U.S.C. § 3024 (i) (1). The NSA states that "[t] he Director of
National Intelligence shall protect intelligence sources and
methods from unauthorized disclosure." Id. CREW does not contest
that Section 102A ( i) ( 1) of the NSA is. an Exemption 3 statute for
purposes of FOIA. It contends only that the withheld material does
not contain intelligence sources and methods and therefore does
not fall within Section 102A(:j_) (1). Pl. 's Mot. at 16.
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CREW' s argument is similar to its objections under
Exemption 1, namely that the protection afforded "intelligence
sources and methods" by the NSA relates only to "information the
Agency needs to perform its statutory duties with respect to
foreign intelligence." Id. at 16-1 7 (emphasis added in Pl. 's Mot.)
(quoting Sims, 471 U.S. at 170). CREW alleges that the documents
it seeks relate only to domestic drone. use, and therefore are
beyond the scope of the NSA's authority to withhold documents. Id.
at 17.
The mere fact that the FBI uses a drone domestically does not
mean that the use does not involve foreign intelligence or counter-
intelligence. Mr. Hardy has affirmatively stated here that the
information withheld would "reveal the actual intelligence
activities and methods used by the FBI against specific targets of
foreign counterintelligence investigations or operations." See
Def.'s Mot. at 10 (emphasis added) (citing Hardy Deel. ~ 42). As
discussed above in Section III.B.l.a, CREW has not successfully
rebutted this.
Thus, the Court concludes that DOJ has provided sufficient
details justifying application of Exemption 3 and that the
information was properly withheld under Section 102A(i) (1) of the
NSA.
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3. FOIA Exemption 4
FOIA Exemption 4 permits an agency to withhold "trade secrets
and commercial or financial information obtained from a person"
that are "privileged or confidential." 5 U.S.C. § 552(b) (4). Such
information is exempt only if it meets all three requirements: It
must be (1) commercial, financial, or a trade secret; (2) obtained
from a person; and (3) privileged or confidential. See Pub. Citizen
Health Research Group v. Food & Drug Admin., 704 F.2d 1280, 1290
(D.C. Cir. 1983); COMPTEL v. Fed. Commc'ns Comm'n, 910 F. Supp. 2d
100, 114-115 (D.D.C. 2012).
DOJ has withheld two subcategories of commercial information:
(1) solicitation-related material and (2) operator manuals and a
vendor training schedule. CREW contends that the Government
improperly withheld information under Exemption 4 because the
information is not confidential.
Our Court of Appeals, sitting en bane, has distinguished
between tests of confidentiality under Exemption 4 based on whether
the information was submitted to the government voluntarily or
involuntarily. See Critical Mass III, 975 F.2d at 879. In Critical
Mass III, our Court of Appeals held that voluntarily submitted
information subject to a FOIA request is confidential under
Exemption 4 when the information "is of a kind that would
customarily not be released to the public by the person from whom
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it was obtained." Id. ; see also Baker & Hostetler LLP v. U. s. Dep' t
of Commerce, 473 F.3d 312, 320 (D.C. Cir. 2006).
On the other hand, where commercial or financial information
is submitted to the government involuntarily or on a mandatory
basis, it is considered confidential only if "disclosure would be
likely either (1) to impair the Government's ability to obtain
necessary information in the future; or (2) to cause substantial
harm to the competitive position of the person from whom the
information was obtained." Ctr. for Auto Safety v. Nat'l Highway
Traffic Safety Admin., 244 F.3d 144, 147-48 (D.C. Cir. 2001)
(quoting Critical Mass III, 975 F.2d at 878). Less protection is
provided for involuntarily submitted information because
disclosure does "not seriously threaten[]" the Government's future
access to the information. Id. at 148. In addition, "[t]he court
will generally defer to the agency's predictive judgments as to
the repercussions of disclosure." Jurewicz v. U. s. Dep' t of Agric.,
741 F.3d 1326, 1331 (D.C. Cir. 2014) (citing United Techs. Corp.
v. Dep't of Def., 601 F.3d 557, 563 (D.C. Cir. 2010)) (internal
quotation marks omitted) .
The parties agree that the information at issue under
Exemption 4 was submitted involuntarily for purposes of the
Critical Mass III framework. See Pl.'s Mot. at 19-20; Def.'s Opp'n
at 8 n. 5. Applying the involuntarily submitted information
standard, DOJ argues that the information, if released, would cause
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substantial competitive harm to the vendors, as well as impair the
government's ability to obtain necessary information in the
future, and is therefore confidential.
a. Contract Solicitation Materials
The first category of information withheld under Exemption 4
is comprised of a vendor's solicitation for a contract proposal.
Def. 's Mot. at 15 (citing Hardy Deel. ~ 56) . The solicitation
includes a Firm Fixed Pricing Summary Sheet, Conditions on
Estimate, and a "Commercial U.S. Conditions UAS Products 7
Services" statement. Hardy Deel. ~ 56.
DOJ focuses on the fact that the vendor does not typically
release this information to the public and that on each page, the
vendor included a footer stating: "This proposal includes [vendor
name] , proprietary or confidential data that shall not be disclosed
outside the Government, nor shall it be duplicated or used by the
recipient, in whole or in part, for any purpose other than to
evaluate this proposal. Furthermore, this material is exempt from
disclosure under FOIA because it contains trade secrets and/or
commercial or financial information that is privileged or
confidential. 11 Id. But the DOJ' s emphasis is misplaced, as it
reflects the standard for voluntarily (not customarily released to
the public), rather than involuntarily (substantial competitive
harm), submitted information. See Critical Mass III, 975 F.2d at
879.
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:·.
DOJ next argues that release of the information would impair
the FBI' s ability to obtain similar information from vendors in
the future. Def.'s Opp'n at 8 (citing Second Declaration of David
Hardy ~ 8 ("Second Hardy Deel.") [Dkt. No. 23-2] ) . Mr. Hardy states
that withholding the information under Exemption 4 "encourages all
future submitters to furnish useful commercial or financial
information to the government without hesitation, and it also
provides the government with an assurance that the required
submissions will be reliable." Second Hardy Deel. ~ 8 (c) . The Court
finds this argument unpersuasive, as DOJ has not sufficiently
explained how disclosure will make future contract solicitation
submissions less reliable.
DOJ's next argument is that this information, if released,
would "cause substantial harm to the vendor's competitive
position." Def.'s Opp'n at 7. DOJ explains that the information
would provide potential competitors "with key inside information
that would undercut the vendor's position in the market because
this vendor sells this type of equipment and services only to law
enforcement entities." Id. at 7-8 (emphasis added). DOJ fails to
fully explain the relevance of the fact that the vendor exclusively
sells this type of equipment to law enforcement entities.
A declaration from the.vendor, submitted in camera, provides
more detail regarding the potential competitive harm. See Second
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Vendor Declaration `` 7-13 ("Second Vendor Deel.") , 2 Ex. A to
Second Hardy Deel. (in camera submission). The vendor argues that
the pricing information, if disclosed, would enable commercial
customers to determine the vendor's unit pricing and enable the
customers to bargain down the prices more effectively. Second
Vendor Deel. ~ 7. Prices given to the government are often lower
than those offered to commercial customers, and if the pricing
information were disclosed, commercial customers would seek price
concessions similar to those given to the government. Id. `` 5-7.
The pricing information would also help the vendor's
competitors underbid it on future government solicitations. Id.
~ 7. The vendor states that it competes with several other
manufacturers to obtain contracts with the government and that the
equipment unit price is a critical factor. If the unit price were
revealed, competitors could underbid the vendor by simply lowering
their unit price below the vendor's. Id. `` 9-10.
The vendor makes similar arguments with regard to the training
information and commercial terms and conditions included in the
contract document. Id. `` 11-13. The vendor contends that release
of this information would enable competitors to determine what
2 Exhibit A to the Second Hardy Declaration contains two
declarations by the vendor, which share the same title and are not
distinguishable by pagination or paragraph numbers. The first
vendor declaration will therefore be referred to as "First Vendor
Deel.," and the second as "Second Vendor Deel.").
-23-
..
training the vendor offers at what price, and what conditions the
pricing is based on. This would enable competitors to undercut
prices, as well as offer potentially more advantageous terms and
conditions. Id.
The Court agrees that public release of this information would
cause serious competitive harm to the vendor. The vendor must
diligently protect this information at every juncture. The vendor
requires non-disclosure agreements from third-party commercial
intermediaries, confidentiality agreements from employees, and
does not share this information with competitors or the public. It
would put the vendor at a distinct disadvantage in bid
solicitations if its pricing information were made public.
The Court concludes that disclosure of the contract
solicitation documents would cause substantial harm to the
competitive position of the vendor. Therefore, the documents are
considered confidential for purposes of Exemption 4 and were
properly withheld.
b. Operator Manuals and Training Documents
DOJ also withheld a second category of documents under
Exemption 4, comprised of operator manuals a,nd vendor training
documents. See Def .'s Mot. at 16. The manuals contain "a
comprehensive overview of the design, operation, capabilities, and
maintenance" of the UAVs, including characteristics that are
unique to the vendor's UAVs. Id. (quoting Hardy Deel. ~ 58). The
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vendor asserts that disclosure would seriously and adversely
affect its competitive position because a competitor could utilize
the information to improve the designs of its products to better
compete with the vendor on future products. Id. (citing Hardy Deel.
~ 58). The vendor again asserts that the training manuals would
also permit competitors to determine what training the vendor
provides and at what price, which could be used to compete with
the vendor in the future. See First Vendor Deel. `` 9-10.
CREW's two objections are that the Hardy declaration "merely
parroted the [vendor's] response" and that UAV operator manuals
and training documents are already in the public domain. Pl.' s
Mot. at 21.
Regarding CREW's first objection, the fact that DOJ relies on
.the statements of the vendor regarding anticipated competitive
harm is no reason to disregard DOJ' s arguments. CREW does not
challenge the substance--that competitive harm will result from
disclosure--of the vendor and DOJ's assertions.
With regard to its second objection, CREW does not assert
that the withheld materials are the same as those in the public
domain, see Pl.'s Mot. at 21-22, but do point to different UAV
manuals and training documents which are in the public domain.
However, the existence of those manuals and training documents do
not indicate that the vendor's sensitive information is already
public, nor does it necessarily diminish the vendor's concerns of
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competitive harm. Plaintiffs have not shown that the manuals are
identical, or even comparable. Indeed, the manuals CREW cites are
published by the United States Army and the Australian Government's
Civil Aviation Safety Authority, not commercial entities. Id. Nor
are they specific to any particular vendor or equipment.
For these reasons, the public documents Plaintiff refers to
in no way suggest that the withheld documents are already public,
nor do they eliminate the vendor's competitive harm concerns.
DOJ has sufficiently shown substantial competitive harm to
the vendor if its manuals and training documents were to become
public, and the Court concludes that the documents are therefore
confidential. Thus, DOJ has met its burden of showing why Exemption
4 applies to the UAV manuals and training documents.
4. FOIA Exemption 5
FOIA Exemption 5 protects from disclosure "inter-agency or
intra-agency memorandums or letters which would not be available
by law to a party other than an agency in litigation with the
agency." 5 U.S.C. § 552(b) (5). Courts have construed this language
to exempt those documents "normally privileged in the civil
discovery context," including those protected by the attorney work
product and attorney client privileges. NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 149 (1975); see also Martin v. Dep't of Justice,
488 F.3d 446, 455 (D.C. Cir. 2007). In addition, "[t]he privilege
. extends to all situations in which an attorney's counsel is
-26-
sought on a legal matter." Coastal States Gas Corp. v. Dep't of
Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). Therefore, "it is clear
that an agency can be a 'client' and agency lawyers can function
as 'attorneys' within the relationship contemplated by the
privilege." Id. at 863.
The FBI withheld documents pursuant to the deliberative
process privilege, which protects intra- and inter-agency
documents that are both "predecisional and deliberative." Mapother
v. Dep't. of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). A
document is predecisional if "it was generated before the adoption
of an agency policy" and it is deliberative if "it reflects the
give-and-take of the consultative process." Judicial Watch v. Food
& Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006) (quoting Coastal
States, 617 F.2d at 866).
CREW first challenges the Exemption 5 withholdings on the
ground that DOJ failed to give consideration to "whether any of
the withheld documents contain information actually incorporated
into a final agency decision," because to the extent the "documents
reflect information in the final [agency documents] , the
privilege would no longer apply." Pl.'s Mot. at 24. CREW fails to
cite any case law in either its Motion or its Reply in support of
this statement. See id. at 23-24; Pl.'s Reply at 8-9. Given the
complete lack of support for the proposition that draft or
predecisional documents that reflect information in the agency's
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final decision are no longer privileged, 3 this argument must be
·rejected.
CREW next argues that, for the documents withheld on the
grounds of deliberative process privilege, any segregable factual
information is not protected by Exemption 5 and should have been
released. See Pl.'s Mot. at 24. This argument claims that the FBI
failed to properly segregate and release non-exempt portions of
the documents, and will be addressed in Section III.B.6, along
with Plaintiff's other segregability arguments.
DOJ has sufficiently explained what documents it has withheld
and why. DOJ described in detail that the documents ref le ct an
ongoing dialogue within the agency during the development of
various policy and program issues. The Court concludes that the
documents clearly fall within the scope of the deliberative process
privilege and were properly withheld under Exemption 5.
5. FOIA Exemption 7(E)
FOIA Exemption 7(E) precludes disclosure of responsive
.
documents, records or information that has been:
compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement
records or information (E) would disclose
techniques and procedures for law enforcement
investigations or prosecutions, or would disclose
3 Plaintiff appears to argue the inverse in its Reply, stating that
"where the drafts 'became final documents that reflect agency
decisions, '" they "therefore fall within the exemption." Pl. 's
Reply at 9 (quoting Def.'s Opp'n at 12). Plaintiff provides no
support for this argument and its earlier contrary argument.
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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).
Information withheld under Exemption 7 must "first meet a
threshold requirement: that the records were compiled for law
enforcement purposes." Elec. Privacy Info. Ctr. v. U.S. Dep't of
Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015) (quoting Pub.
Emps. for Envtl. Responsibility v. U.S. Section, Int'l Boundary &
Water Comm'n, U.S.-Mexico, 740 F.3d 195, 202-03 (D.C. Cir. 2014))
("Public Emps."). It is undisputed that the information withheld
by the FBI was compiled for law enforcement purposes and meets the
threshold requirement. See Pl.'s Mot. at 25; Def.'s Opp'n at 13.
There is some disagreement in the courts as to the proper
reading of Exemption 7 (E). As discussed above, Exemption 7 (E)
covers "techniques and procedures for law enforcement
investigations or prosecutions" as well as "guidelines for law
enforcement investigations or prosecutions." 5 u.s.c.
§ 552(b} (7) (E) (emphases added). The final clause of the exemption
requires that an agency demonstrate that the disclosure of the
records at issue "could reasonably be expected to risk
circumvention of the law." Id. The "risk circumvention of the law"
requirement ·clearly applies to records containing "guidelines,"
because the requirement follows directly after the phrase "would
disclose guidelines for law enforcement investigations or
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prosecutions." However, there is some disagreement over whether
the requirement also applies to records containing "techniques and
procedures." Id.
The Second Circuit has held that the "risk circumvention of
the law" requirement applies only to guidelines, and DOJ urges
this Court to adopt a similar reading. See Allard K. Lowenstein
Int'l Human Rights Project v. Dep't of Homeland Sec., 626 F.3d
678, 681-82 (2d Cir. 2010); Def.'s Mot. at 25-26. By contrast, in
Blackwell v. FBI, our Court of Appeals applied the "risk
circumvention of the law" requirement to techniques and
procedures, as well as guidelines. 646 F13d 37, 41-42 (D.C. Cir.
2011) . Although the Blackwell Court did so without any discussion
of the applicability of the requirement, the Court of Appeals
acknowledged the Blackwell holding in Public Emps., and did not
question it. 740 F.3d at 205 n.4. The Court did comment that it
was not clear that, "given the low bar posed by the 'risk
circumvention of the law' requirement, . . . the difference matters
much in practice." Id.
Of course, this Court is bound to follow the precedent of our
Court of Appeals, and therefore the Court must apply the "risk
circumvention of the law" requirement to techniques and
procedures, as well as guidelines. 4
4 Although this Court is bound by precedent, the Court agrees that
a plain reading of the statute suggests that the "risk
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Exemption 7(E) 's requirement that disclosure risk
circumvention of the law "sets a relatively low bar for the agency
to justify withholding." Blackwell, 646 F.3d at 42. "To clear that
relatively low bar, an agency must demonstrate only that release
of a document might increase the risk 'that a law will be violated
or that past violators will escape legal consequences.'" Public
Emps., 740 F.3d at 205 (quoting Mayer Brown LLP v. IRS, 562 F.3d
1190, 1193 (D.C. Cir. 2009)); see also Blackwell, 646 F.3d at 42
(the Exemption looks for "the chance of a reasonably expected
risk.")
The FBI withheld several categories of documents under
Exemption 7 (E), only some of which CREW challenges. The first
category that CREW challenges is the withholding of information
regarding UAV operational capabilities and equipment
specifications. Pl.' s Mot. at 26-27. These documents contain
"information specific to the development of UAV[s] as an effective
investigative technical tool for national security and criminal
investigations." Def.'s Mot. at 28. DOJ states that disclosure of
these documents could reasonably be expected to increase the risk
of circumvention of the law because the information would provide
circumvention of the law" requirement applies only to guidelines.
Because the Court finds the documents were properly withheld even
under the "risk circumvention of the law" requirement, the parties'
dispute over the proper reading of Exemption 7(E) does not affect
the outcome.
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key details on various law enforcement techniques and procedures.
Def.'s Mot. at 28-29.
CREW does not dispute that disclosure of the non-public
operational capabilities and equipment specifications would
increase the risk of circumvention of the law. Rather, CREW argues
that the FBI has failed to show that the operational capabilities
and equipment specifications withheld are not already generally
known to the public. See Pl.'s Mot. at 26. CREW provides examples
of websites describing the capabilities of the Predator B drone
used by the Air Force, as well as articles and surveys discussing
drone operational capabilities, to support its argument that
operational capabilities and limitations of drones are already
widely known and therefore not subject to Exemption 7 (E) . Id.
at 26-27.
This argument assumes that all drones are alike. While drones
may generally face similar challenges across the board (i.e.
weather or flight control issues), it does not logically follow
that all of their capabilities and limitations are similar, or
that to know one is to know them all. DOJ explicitly states that
the information withheld contains "non-public investigative
techniques and procedures." Def .'s Opp'n at 15 (citing Hardy Deel.
`` 76-78) (emphasis in original). The public information cited by
CREW does not raise doubts about the veracity of DOJ's claim.
-32-
The next category CREW challenges is "information regarding
the specific types of equipment, systems, software, hardware,
control devices, and other details showing the capabilities,
limitations, and technological advancements of certain UAVs, as
well as the identity of UAV vendors and suppliers." Def.'s Mot. at
28; see also Pl.'s Mot. at 28.
CREW again argues that specifics about the drone equipment
government agencies use, as well as their capabilities and
limitations, are widely available and therefore not subject to
Exemption 7(E). Pl.'s Mot. at 28. This argument is rejected for
the same reasons discussed above.
CREW also argues that vendor and supplier identities are not
law enforcement techniques within the meaning of Exemption 7(E).
Id. DOJ's argument is that disclosure of the vendor would, due to
the vendor's niche market, reveal the equipment and services
provided to the FBI. This would "effectively reveal knowledge about
the FBI's surveillance capabilities . . and limitations." Def.'s
Opp'n at 19 (citing Second Hardy Deel. ~ 8(c) & n.4). Consequently,
DOJ argues, criminals and foreign entities would have key
information that could be used in countermeasure efforts. Id. at
18-19. "If the FBI were forced to use compromised equipment it
would have an immeasurable, negative effect on current and/or
future investigations and law enforcement response capability of
the FBI." Id. at 18. The Court agrees.
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The third and fourth categories of documents that CREW
challenges are comprised of information regarding UAV training,
pilot qualifications, and funding details. See Pl.'s Mot. at 29.
CREW argues that DOJ "merely parrot[s] the language of Exemption
7(E)" and therefore DOJ fails to meet its burden of proving that
the information is properly exempt. Id. CREW also argues that the
FBI's justifications rely on "overblown claims of harm" that are
not commensurate with the information CREW seeks. Pl.'s Reply at
12.
In its Opposition, DOJ explained that releasing information
about training and the associated equipment procedures "is
tantamount to releasing information about the actual employment of
the procedures and techniques themselves." Def.'s Opp'n at 19. The
Court agrees that the training and equipment information, if
disclosed, would reveal law enforcement techniques and procedures,
which, as discussed previously, could reasonably be expected to
risk circumvention of the law.
Similarly, DOJ argues that releasing funding information and
details as to how and what the FBI is acquiring as part of its UAV
program is tantamount to releasing information about UAV
capabilities, program sophistication, vendor identity, and the
scope and direction of the UAV program. Id. at 19-20; Hardy Deel.
~ 82. The funding details include "funding account numbers, bank
routing numbers, purchase order numbers, specific contractual
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terms and conditions, product numbers or codes, product
descriptions including parts, repair requests, and product
pricing, purchase order approval procedures, and funding
allocation and budgeting details." Hardy Deel. ~ 81. DOJ has
properly withheld this information under Exemption 7(E).
The final category of information CREW challenges is
described as "non-public details regarding UAV use and
tradecraft." Def.'s Mot. at 32; see also Pl.'s Mot. at 30. DOJ
explains that the FBI' s tradecraft "constitutes the body of
techniques and procedures it employs to administer and operate its
UAV program for law enforcement and national security purposes."
Def.'s Opp'n at 20.
This is essentially an umbrella exemption that DOJ uses as a
catch-all justification for withholding information. DOJ concedes
that this rationale is not used to withhold any information that
was not already withheld under Exemption 7(E) on another basis.
Rather, all the information otherwise withheld pursuant to
Exemption 7 (E) is also withheld on the basis of "UAV use and
tradecraft." Id. at 20-21. The justification for this is that "each
piece of non-public information detailing the FBI's UAV program
has a functional nexus to the administration and operation of the
UAV program." Id. at 20. DOJ argues that releasing any of the non-
public details regarding the FBI's UAV use and tradecraft "could
enable potential targets of the FBI to assemble information about
-35-
the program to reverse engineer the FBI's use and capabilities,
neutralizing or significantly degrading the FBI's ability to use
the technique." Id. at 21.
The Court finds this exemption too broad and in conflict with
the Supreme Court's mandate that FOIA' s exemptions should be
narrowly construed. See Milner v. Dep't of Navy, 562 U.S. 562, 563
(2011) (FOIA's "goal is broad disclosure" and thus "the exemptions
must be given a narrow compass") (internal quotation marks and
citation omitted). DOJ's argument that every detail relating to
FBI's tradecraft is exempt from disclosure because of the
possibility that it could be compiled with other information is
both vague and attenuated. This is not to say that tradecraft
information can never be withheld, but Defendant has not met its
burden here.
Despite the Court's rejection of DOJ's tradecraft argument,
it finds that DOJ sufficiently explained its reasons for
withholding other categories of documents and has shown that ·
disclosure would increase the risk of circumvention of the law.
The Court therefore concludes that the documents were properly
withheld under Exemption 7(E).
6. Segregability
CREW argues that the FBI has failed to segregate and release
all non-exempt information responsive to its FOIA Request. See
Pl.'s Mot. at 30-32. FOIA requires that "[a]ny reasonably
-36-
segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are
exempt." 5 U.S.C. § 552(b). "[N]on-exempt portions of a document
must be disclosed unless they are inextricably intertwined with
exempt portions." Elliott v. U.S. Dep't of Agric., 596 F.3d 842,
851 (D.C. Cir. 2010) (quoting Mead Data Cent., Inc. v. U.S. Dep't
of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)). To demonstrate
that all reasonably segregable material has been released, the
agency must provide a "detailed justification" for its non-
segregability. Mead Data, 566 F.2d at 261. "However, the agency is
not required to provide so much detail that the exempt material
would be effectively disclosed." Johnson v. Exec. Office for U.S.
Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002).
DOJ has explained that the FBI examined each responsive page
individually to identify non-exempt information and "re-reviewed
all pages to ensure that all segregable non-exempt information has
been released." Def.'s Opp'n at 22 (quoting Hardy Deel. ~ 30). For
pages that were withheld in full, DOJ asserts that any non-exempt
information was so intertwined with exempt material such that it
could not be reasonably segregated. Id. at 22-23.
"Agencies are entitled to a presumption that they complied
with the obligation to disclose reasonably segregable material."
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir.
2007) (citing Boyd v. Criminal Div. of U.S. Dep't of Justice, 475
-37-
F.3d 381, 391 (D.C. Cir. 2007)). "If the requester successfully
rebuts this presumption, the burden lies with the government to
demonstrate that no segregable, nonexempt portions were withheld."
Id. (citing 5 U.S.C. § 552 (a) (4) (B)).
CREW argues that the FBI's "blanket assertion" that it has
re-reviewed all pages to ensure all the segregable non-exempt
information was released is inadequate to meet its burden of proof.
Pl.'s Mot. at 31. CREW cites Chesapeake Bay Found. v. U.S. Army
Corps of Eng' rs, 671 F. Supp. 2d 101 (D.D.C. 2009), but the facts
of that case are easily distinguishable. In Chesapeake Bay, the
agency did not specifically address segregability and not a single
document was released in part. See id. at 103, ·109, 109 n.1. That
is not the case here.
As discussed above, an agency is not required to provide so
much detail that the exempt material is in effect disclosed. Our
Court of Appeals held in Johnson that a comprehensive Vaughn index,
along with an affidavit that a line-by-line segregability review
of each document withheld in full, was sufficient to fulfill the
agency's obligation to show that further segregability was not
feasible. See Johnson, 310 F.3d at 776; Like the agency in Johnson,
DOJ has provided a detailed Vaughn index and an affidavit asserting
that each responsive document was re-reviewed for segregability.
See Def.'s Mot. at 33 (citing Hardy Deel. ~ 30).
-38-
CREW also argues that the documents withheld under
Exemption 5 specifically contain segregable information that
should be released. CREW contends that the documents contain
factual information that is not privileged, and therefore outside
the scope of the exemption. See Pl.'s Mot. at 24, 31.
Absent a claim that disclosure would jeopardize state
secrets, "memoranda consisting only of compiled factual material
or purely factual material contained in deliberative memoranda and
severable from its context" are generally discoverable in civil
litigation, and by analogy, are also not protected by Exemption 5.
Envtl. Prot. Agency v. Mink, 410 U.S. 73, 87-88 (1973) (emphasis
added) (superseded by statute on other grounds, Freedom of
Information Act, Pub. L. No. 93-502, 88 Stat. 1561, as recognized
in CIA v. Sims, 471 U.S. 159, 189 n.5 (1985)).
CREW does not allege that any of the withheld documents
contain compiled factual material and identifies only one example
of "purely factual" information it believes improperly withheld.
Plaintiff alleges that Certificates of Waiver or Authorization
("COAs") contain purely factual information. Pl.'s Mot. at 31-32.
The Federal Aviation Administration (FAA) describes a COA as:
an authorization issued by the Air Traffic Organization
to a public operator for a specific UA[V] activity. After
a complete application is submitted, FAA conducts a
comprehensive operational and technical review. If
necessary, provisions or limitations may be imposed as
part of the approval to ensure the UA[V] can operate
-39-
safely with other airspace users. In most cases, FAA
will provide a formal response within 60 days from the
time a completed application is submitted.
Pl.'s Mot. at 6 (quoting Certificates of Waiver or Authorization
(November 14, 2014), available at https://www.faa.gov/about/
office_org/headquarters_offices/ato/service_units/systemops/aaim
/organizations/uas/coa/) .
While COAs may contain some factual information, it is not
clear that they contain "purely factual material." Mink, 410 U.S.
at 88. CREW has not alleged what the purely factual material is
likely to be, or why it thinks the COAs contain it. Pl.'s Mot. at
31-32. Consequently, CREW has not shown that the COAs are the type
of factual information that is outside the scope of Exemption 5 as
described in Mink. Al though CREW asserts the existence of a "myriad
[of] factual issues" that call into question the FBI's claim of
proper segregation, it provides only the single example of COAs.
Id. That one somewhat vague assertion is not sufficient to rebut
the presumption that the FBI complied with its obligation to
disclose reasonably segregable material.
-40-
IV. CONCLUSION
For the foregoing reasons, Plaintiffs' Motion for Summary
Judgment shall be denied, and DOJ's Motion for Summary Judgment
shall be granted. An Order shall accompany this Memorandum Opinion.
February 9, 2016 Glady8Kes~
United States District Judge
Copies to: attorneys on record via ECF
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