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

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REPORTERS COMMITTEE FOR :
FREEDOM OF THE PRESS, :
:
Plaintiff, : Civil Action No.: 17-1701 (RC)
:
v. : Re Document Nos.: 47, 49, 50
:
FEDERAL BUREAU OF :
INVESTIGATION et al., :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
JUDGMENT, DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT, AND
DENYING PLAINTIFF’S MOTION FOR IN CAMERA REVIEW
I. INTRODUCTION
Concerned about law enforcement going undercover to impersonate journalists and
documentary filmmakers, Plaintiff Reporters Committee for Freedom of the Press seeks records
relating to the practice from the Federal Bureau of Investigation. In response to the Committee’s
Freedom of Information Act (“FOIA”) request, the Bureau disclosed some redacted documents
and withheld others completely. It says it has discharged its obligations under FOIA. The
Committee disagrees. For the most part, the Bureau is right. It has adequately justified its
withholdings for all but one group of the disputed records. With respect to that group of records,
the agency must provide a better explanation.
II. BACKGROUND
As discussed in the Court’s previous opinion in this case, the Committee’s lawsuit has its
origins in a series of news events that brought public attention to law enforcement’s practice of
impersonating journalists and documentary filmmakers. See Reps. Comm. for Freedom of Press
v. FBI (Reps. Comm. I), 369 F. Supp. 3d 212, 215–217 (D.D.C. 2019). The most prominent of
those events involved an armed standoff between federal law enforcement officers and Nevada
cattle rancher Cliven Bundy. See id. at 216. During the subsequent prosecution of Bundy and
his supporters, the federal government revealed that FBI agents posed as documentary
filmmakers to lure suspects into speaking with them. Id. at 216–17.
Media coverage of the Bureau’s undercover operation—called “Operation Longbow”—
prompted the Committee to request information about the filmmaker impersonation tactic. See
id. at 217. Its FOIA request sought eight kinds of records. See Defs. Statement of Material Facts
as to Which There Is No Genuine Issue (“Defs.’ SMF”) ¶ 1, ECF No. 47-2. Items 1 through 5 of
the request asked for records pertaining to the Bundy standoff. Id. Items 6 through 8 were
framed more broadly. They requested:
(6) All records, including but not limited to, email communications,
concerning or referencing any other instances of impersonation of a
documentary filmmaker and/or a documentary film crew by the FBI in
connection with any criminal investigation since January 1, 2010;
(7) Records of any “professional credentials, websites and business cards”
used by FBI agents in connection with the impersonation of a
documentary filmmaker and/or a documentary film crew since January 1,
2010; and
(8) All records of the FBI’s policies and practices concerning the
impersonation of documentary filmmaker and/or documentary film crew
since January 1, 2010, including records of any changes to those policies
and practices.
Id. These last three items are at the center of the parties’ current dispute.
When the Committee’s attempts to get records directly from the Bureau failed, it filed
this FOIA suit. See Reps. Comm. I, 369 F. Supp. at 218. The Bureau initially refused to confirm
2
or deny the existence of any records responsive to items 6 and 7 (other than those dealing with
the already-public Bundy investigation). See id. It argued that disclosure of any information
related to the Committee’s request would reveal information about a law enforcement technique
that would lessen that technique’s effectiveness. Id. at 219. The Court disagreed, see id. at 225,
so the Bureau began searching for responsive records, see, e.g., Joint Status Report, ECF No. 30.
The Bureau’s search uncovered “approximately 125,000 pages and approximately 200
audio/video files potentially responsive to items 6 and 7,” 4th Seidel Decl. ¶ 21, ECF No. 47-3,
as well as 28 pages responsive to item 8, id. ¶ 25. Although the agency released a small portion
of these records to the Committee, it withheld most of them under various exemptions to FOIA’s
general disclosure requirement. See id. ¶¶ 21–23, 27.
Whether the Bureau properly withheld the records that it did is at issue today. It moves
for partial summary judgment, asserting that it has satisfied its obligations under FOIA for items
6 through 8 of the Committee’s request. See Defs.’ Mot. Partial Summ. J. (“Defs.’ Mot.”), ECF
No. 47-1; see also Defs.’ Combined Reply and Opp’n, ECF No. 53. The Committee counters
with a motion for partial summary judgment of its own, challenging various aspects of the
Bureau’s disclosure as inadequate. See Pl.’s Mem. Opp’n Defs.’ Mot. Partial Summ. J. and
Supp. Pl.’s Cross-Mot. Partial Summ. J. (“Pl.’s Mot.”), ECF No. 49-1. It also asks the Court to
review a sample of the disputed records in camera to verify the Bureau’s exemption claims. See
Pl.’s Mem. Supp. Mot. In Camera Review (“Pl.’s In Camera Mot.”), ECF No. 50-1; see also
Pl.’s Reply Supp. Cross-Mot. Partial Summ. J. and Mot. In Camera Review (“Pl.’s Reply”).
For the reasons stated below, the Court grants in part and denies in part the Bureau’s
motion and denies both of the Committee’s motions. The Bureau properly withheld most of the
records in dispute. Nevertheless, it did not adequately justify withholding one category of
3
records. The agency will have another chance to do so. In addition, in camera review of a
sampling of the withheld records is not necessary at this time.
III. LEGAL STANDARD
A court must grant summary judgment “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). Because resolving a FOIA claim generally entails applying law to undisputed
facts, “FOIA cases typically and appropriately are decided on motions for summary judgment.”
See Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009).
The Freedom of Information Act “was designed ‘to pierce the veil of administrative
secrecy and to open agency action to the light of public scrutiny.”’ U.S. Dep’t of State v. Ray,
502 U.S. 164, 173 (1991) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)). Put
simply, it “mandates that an agency disclose records on request, unless they fall within one of
nine exemptions.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011). Because FOIA embodies
a general policy of disclosure, however, the exemptions must “be given a narrow compass.”
Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just. (CREW), 746 F.3d 1082, 1088 (D.C.
Cir. 2014) (internal quotation marks omitted) (quoting Milner, 562 U.S. at 571). For the same
reason, “[t]he agency bears the burden of establishing that a claimed exemption applies.” Id.And even then, the recently enacted FOIA Improvement Act requires an agency to disclose an
exempted record unless it can also show that it “reasonably foresees that disclosure would harm
an interest protected by [the] exemption” or that “disclosure is prohibited by law.” 5 U.S.C.
§ 552(a)(8)(A)(i); see also Machado Amadis v. U.S. Dep’t of State, 971 F.3d 364, 370 (D.C. Cir.
2020); Ctr. for Pub. Integrity v. U.S. Dep’t of Def., 486 F. Supp. 3d 317, 335 (D.D.C. 2020).
4
An agency carries its burden at summary judgment “by submitting affidavits that
‘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.’” CREW, 746 F.3d at
1088 (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). Agency affidavits
can “take the form of a ‘Vaughn index,’ but there is ‘no fixed rule’ establishing” what they “must
look like.” Id. (citations omitted). An agency may offer declarations from agency officials,
Vaughn indices, the requested records in camera, or a combination of some or all those sources.
See Tax Analysts v. IRS, 410 F.3d 715, 720 (D.C. Cir. 2005); see also ACLU v. CIA, 710 F.3d
422, 432 (D.C. Cir. 2013) (“[A] district court has considerable latitude to determine [a Vaughn
index’s] requisite form and detail in a particular case.”). What matters is that the agency
materials “give the reviewing court a reasonable basis to evaluate the claim of privilege.”
ACLU, 710 F.3d at 433 (quoting Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994)).
Usually, an agency must “provide the requestor with a description of each document
being withheld[] and an explanation of the reason for the agency’s nondisclosure.” Oglesby v.
U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). But when “the FOIA litigation
process threatens to reveal ‘the very information the agency hopes to protect,’” the agency may
limit the information in its affidavits to just “‘brief or categorical descriptions’ of the withheld
information.” CREW, 746 F.3d at 1088 (quoting ACLU, 710 F.3d at 432). In that circumstance,
the agency can “justify withholding or redacting records ‘category-of-document by category-of-
document’ rather than ‘document-by-document.’” Am. Immigr. Lawyers Ass’n v. Exec. Off. for
Immigr. Rev., 830 F.3d 667, 675 (D.C. Cir. 2016) (quoting CREW, 746 F.3d at 1088).
5
Finally, an agency that withholds requested information “must demonstrate that it cannot
segregate the exempt material from the non-exempt and disclose as much as possible.”
Hertzberg v. Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003); see also 5 U.S.C. § 552(b); Mead
Data Ctr., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) (“[N]on-exempt
portions of a document must be disclosed unless they are inextricably intertwined with exempt
portions.”). It can satisfy that obligation by explaining with “reasonable specificity” why it
cannot segregate the requested documents further. See Ctr. for Pub. Integrity v. U.S. Dep’t of
Com., 401 F. Supp. 3d 108, 116 (D.D.C. 2019) (quoting Loving v. U.S. Dep’t of Def., 550 F.3d
32, 41 (D.C. Cir. 2008)). A “blanket declaration” of nonsegregability is not enough. See
Wilderness Soc. v. U.S. Dep’t of Interior, 344 F. Supp. 2d 1, 19 (D.D.C. 2004). When an agency
offers a sufficient explanation, however, courts presume that it has disclosed what it needs to
unless there is reason to suspect otherwise. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106,
1117 (D.C. Cir. 2007); see also Ctr. for Public Integrity, 401 F. Supp. 3d at 116–17.
IV. ANALYSIS
The Bureau has largely satisfied its disclosure obligations under FOIA. As explained
below, the records at issue consist of five sets. The Bureau properly withheld two sets in full and
two sets in part. It needs to do no more to keep those records from the Committee. When it
comes to the final set, however, the Bureau’s justification for categorically withholding the
records falls well short of what FOIA requires. The agency will have to do better to show that it
is entitled to withhold that last group of records.
A. The Records at Issue
Before getting into the Committee’s challenges and the Bureau’s exemption claims, it is
helpful to summarize the records in dispute. They fall into five sets.
6
Four sets are responsive to items 6 and 7 of the Committee’s request. One consists of
records that relate to investigations in which the Bureau has not publicly acknowledged using the
filmmaker technique. 4th Seidel Decl. ¶ 23. The Bureau explains that these documents contain
detailed information about undercover filmmaker operations, including requirements for
authorization, how agents use the technique, and when agents might use the technique over
others. Id. ¶ 36. That is as specific as the agency gets. Citing concerns that revealing the scope
of the technique’s use could jeopardize law enforcement efforts, the Bureau refuses to say in
public court filings how many pages are even responsive to the Committee’s request. Id. ¶¶ 23,
31–36. It has instead provided a declaration and a Vaughn index to the Court for in camera
review (both of which the Court will discuss further below). Id. ¶ 36. The agency claims that
Exemption 7(E) permits it to withhold from the Committee not only the volume of responsive
documents and the descriptive information typically provided in a Vaughn index, but also the
documents themselves in full. Id. ¶ 32. In addition to that categorical claim, the Bureau asserts
that a variety of exemptions—Exemptions 1, 3, 5, 6, 7(C), 7(D), 7(E), and 7(F)—protect the
contents of the documents from disclosure. See id. ¶¶ 30, 37.
The other three sets of records responsive to items 6 and 7 relate to two investigations in
which the Bureau admitted that agents posed as filmmakers (including the Bundy investigation).
Collectively, these records consist of 90 pages of documents. See id. ¶¶ 21–22, 38. The first set
includes 10 pages that the Bureau released to the Committee in part. See 2d Townsend Decl.,
Ex. N, ECF No. 49-3. The 10 pages comprise electronic communications to and from the FBI’s
Cleveland Field Office concerning a proposed undercover operation. See id.; see also Defs.’
Combined Reply and Opp’n, Ex. A (“Public Vaughn Index”), ECF No. 53-3; 4th Seidel Decl.
¶ 86. They are heavily redacted. See 2d Townsend Decl., Ex. N. A reader can determine only
7
that the proposal involved a 2010 homicide and relied on information from a confidential
informant. See id. By each redaction, the Bureau noted which exemptions it believed should
apply. See id. It claimed Exemptions 5, 6, 7(C), 7(D), and 7(E). See id.
The Bureau withheld the next two records sets—together consisting of 80 pages—in full.
4th Seidel Decl. ¶¶ 22, 38. For 26 of those pages, it provided the Committee a table listing
which exemptions applied to each page. See 2d Townsend Decl., Ex. N. It claimed Exemptions
6, 7(D), and 7(E). See id. The Bureau’s public Vaughn index makes clear that the 26 pages are
part of the same file as the 10 Cleveland Field Office communications. See Public Vaughn
Index. Other than that, the most the Bureau’s public filings reveal about the 26 pages is that they
comprise two 13-page documents, each of which claims the same exemptions on the same pages
as the other. See id. The Bureau withheld the remaining 54 pages “categorically” under
Exemption 7(A) and “other underlying exemptions.” 4th Seidel Decl. ¶ 38. The 54 pages
pertain to the Bundy investigation. Bender Decl. ¶ 7.
Finally, one set of records consists of 28 pages that are responsive to item 8 of the
Committee’s request. These pages “includ[e] four revisions of the policy titled Undercover
Activities: Posing as a Member of the News Media or a Documentary Film Crew.” 4th Seidel
Decl. ¶ 25. Each of the four versions is substantively identical (the only differences are the dates
the agency last reviewed and renewed them). See Bender Decl. ¶ 25; see also 2d Townsend
Decl., Ex. M. The Bureau released the policy documents with some redactions, but, unlike the
Cleveland Field Office communications, it left most of the policy’s language unobscured. See 2d
Townsend Decl., Ex. M. Alongside each redaction is a code indicating in general terms why the
agency withheld the omitted information under Exemption 7(E). See id.
Below is a summary table of the records at issue:
8
Request
Description of Records Claimed Exemptions
Items
Nonpublic uses of technique
Undisclosed number of pages withheld Categorical exemption: 7(E)
in full, categorically Underlying exemptions: 1, 3, 5,
6, 7(C), 7(D), 7(E), 7(F)
6 and 7
Public uses of technique (90 pages)
10 pages withheld in part, redacted 5, 6, 7(C), 7(D), 7(E)
26 pages withheld in full, page-by-page 6, 7(D), 7(E)
54 pages withheld in full, categorically Categorical exemption: 7(A)
“Other underlying exemptions”
Impersonating Filmmakers Policy
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28 pages withheld in part, redacted 7(E)
B. Exemption 7
The Court begins and ends its discussion with Exemption 7. It agrees with the Bureau
that Exemption 7 protects from disclosure four of the records sets the Committee has requested.
The Bureau says that Exemption 7 permits it to withhold the fifth set of records too, but its
explanation is lacking. It will have another opportunity to justify withholding that last set of
records. For now, the Court does not need to look to other exemptions.
Exemption 7 includes six related exemptions within its umbrella. See 5 U.S.C.
§ 552(b)(7). Their common denominator is a threshold requirement that the “records or
information” sought must be “compiled for law enforcement purposes.” Id. It is unquestioned
that the records at issue here satisfy that requirement. The FBI created the documents responsive
to items 6 and 7 of the Committee’s request in the course of law enforcement investigations. See
Reps. Comm. I, 369 F. Supp. 3d at 220 (holding that the Bureau made the threshold showing for
records responsive to items 6 and 7). And the policies that request item 8 seeks are agency
9
records documenting “guidelines, techniques, sources, and procedures” meant to govern those
kinds of investigations. See Tax Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002) (explaining
that internal policies put together outside the context of a specific investigation may still serve
law enforcement purposes).
Rather than debate Exemption 7’s threshold requirement, the parties’ disputes revolve
around its subsidiary exemptions. The Court begins with Exemption 7(E) because it covers most
of the information the Bureau withholds. The Court then moves on to Exemption 7(A), which
the Bureau invokes for the rest.
1. Exemption 7(E)
Exemption 7(E) allows agencies to withhold law enforcement information “only to the
extent that” it “would disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if
such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C.
§ 552(b)(7)(E). The exemption “does not ordinarily protect ‘routine techniques and procedures
already well known to the public,’” but it does “protect ‘confidential details . . . of program[s]’ if
only their ‘general contours [are] publicly known.’” Elec. Frontier Found. v. Dep’t of Just., 384
F. Supp. 3d 1, 9–10 (D.D.C. 2019) (omission and alterations in original) (first quoting Founding
Church of Scientology of Wash., D.C. v. NSA, 610 F.2d 824, 832 n.67 (D.C. Cir. 1979); and then
quoting Sussman, 494 F.3d at 1112).
There is no dispute that agents impersonating filmmakers is a law enforcement technique.
Reps. Comm. I, 369 F. Supp. 3d at 220. Nor is there any dispute that the policy governing the
use of that technique is a “guideline” for Bureau investigations. See Bender Decl. ¶ 25
(explaining that the Bureau “actively utilize[s]” the policy “in its planning and execution” of
10
investigations). As a result, the key question is whether disclosure of the withheld information
“could reasonably be expected to risk circumvention of the law.” 1
That standard “sets a relatively low bar for the agency to justify withholding.” Blackwell
v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). As the D.C. Circuit has said:
[T]he exemption looks not just for circumvention of the law, but for a risk of
circumvention; not just for an actual or certain risk of circumvention, but for an
expected risk; not just for an undeniably or universally expected risk, but for a
reasonably expected risk; and not just for certitude of a reasonably expected risk,
but for the chance of a reasonably expected risk.
Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009). Ultimately, the agency need
only “demonstrate logically how the release of the requested information might create a risk of
circumvention of the law.” Id. at 1194 (cleaned up) (quoting PHE, Inc. v. Dep’t of Just., 983
F.2d 248, 251 (D.C. Cir. 1993)). And that showing is not a “highly specific” one. Id. Finally,
“circumvention of the law” means “that a law will be violated or that past violators will escape
legal consequences.” Id. at 1193.
Contrary to what the Committee says, the FOIA Improvement Act does not heighten the
exemption’s substantive standard. See Pl.’s Mot. at 36–37; Pl.’s Reply at 14–16. For one thing,
applying a higher foreseeability bar “would mean ignoring the D.C. Circuit’s precedents
defining” Exemption 7(E)’s scope. Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of
Homeland Sec., No. 20-cv-1400, 2021 WL 950415, at *6 (D.D.C. Mar. 12, 2021). This Court
“leav[es] to [the D.C. Circuit] the prerogative of overruling its own decisions.” Brookens v.
1
There is some debate among courts of appeals as to whether Exemption 7(E)’s
“circumvention” clause applies to “techniques and procedures” like it does to “guidelines.” See
Pub. Emps. for Env’t Resp. v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mex., 740
F.3d 195, 205 n.4 (D.C. Cir. 2014). The D.C. Circuit applies the clause to both kinds of records,
so this Court does too. See Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011); see also Shapiro
v. U.S. Dep’t of Just., 239 F. Supp. 3d 100, 119 (D.D.C. 2017).
11
Acosta, 297 F. Supp. 3d 40, 49 (D.D.C. 2018) (second alteration in original) (quoting Agostini v.
Felton, 521 U.S. 203, 237 (1997)), aff’d, No. 18-5129, 2018 WL 5118489 (D.C. Cir. Sept. 19,
2018). And the Circuit has continued to apply its pre–FOIA Improvement Act caselaw in the
Exemption 7(E) context since the law’s enactment. See, e.g., Garza v. U.S. Marshals Serv., No.
18-5311, 2020 WL 768221, at *1 (D.C. Cir. Jan. 22, 2020). For another thing, Exemption 7(E)’s
text “already contained an explicit requirement that the agency show a reasonable nexus between
the withheld information and a predicted harm.” Citizens for Resp. & Ethics in Wash., 2021 WL
950415, at *6 n.4. To the extent the standards of Exemption 7(E) and the FOIA Improvement
Act conflict, the one specific to Exemption 7(E) should control. See Radzanower v. Touche Ross
& Co., 426 U.S. 148, 153 (1976) (“[A] statute dealing with a narrow, precise, and specific
subject is not submerged by a later enacted statute covering a more generalized spectrum.”). 2
With that background out of the way, the Bureau invokes Exemption 7(E) for four sets of
records: (1) all the records relating to nonpublic uses of the filmmaker technique; (2) nearly all
the information redacted from the Cleveland Field Office communications; (3) each of the 26
pages related to publicly acknowledged uses of the technique that the Bureau withheld in full;
and (4) all the information redacted from the Bureau’s undercover filmmaker policy. The Court
addresses each in turn. While discussing how Exemption 7(E) applies to the first set of records,
2
As another district court in this Circuit noted, “[t]his analysis does not turn the FOIA
Improvement Act into mere surplusage.” See Citizens for Resp. & Ethics in Wash., 2021 WL
950415, at *6 n.4. The Act retains its bite when an agency claims other exemptions that lack a
foreseeability requirement. See id. (“The effects of the FOIA Improvement Act are perhaps most
strongly felt in cases involving the deliberative process privilege under FOIA Exemption 5.”);
see also Ecological Rts. Found. v. U.S. EPA, No. 19-cv-980, 2021 WL 535725, at *32 (D.D.C.
Feb. 13, 2021) (“[T]he agency’s burden to demonstrate that harm would result from disclosure
may shift depending on the nature of the interests protected by the specific exemption with
respect to which a claim of foreseeable harm is made.”).
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the Court also assesses whether the exemption allows the Bureau to submit in camera affidavits
(in addition to the public ones it provided) to justify its withholdings.
a. Records Relating to Nonpublic Uses of the Technique and the Bureau’s In Camera Affidavits
To begin, the Bureau claims that Exemption 7(E) covers all the records it found that
relate to investigations where it has not publicly acknowledged using the filmmaker technique.
4th Seidel Decl. ¶ 23. Its public declarations provide an overview of those records. They state:
The exempt in full records contain detailed information about specific
requirements for undercover authorization, detailed information concerning the
decision-making process for the FBI’s decision to utilize this particular technique
rather than many others available, the time frame during which the technique was
to be employed, specifics about non-publicly known operation(s), specific details
about the implementation of the technique, and information about expenses
incurred in the use of the technique, among other things.
Id. ¶ 36; Bender Decl. ¶ 28. The declarations go on to explain that the records “consist of lA
envelopes (FD-340), Electronic Communications (‘ECs’), forms, electronic mail messages,
Sentinel Import Form (FD-1036), FD-302s, FBI letters, and other evidentiary documents.” 4th
Seidel Decl. ¶ 36 n.8. 3 But that is the extent of the descriptive information the Bureau provides
publicly. While it says its search uncovered “approximately 125,000 pages of records potentially
responsive” to the Committee’s requests, it does not disclose in public court filings how many of
those pages are actually responsive. Id. ¶ 23. According to the Bureau, providing that number
would “reveal the scope of the FBI[’s] reliance on these techniques.” Id. ¶ 32; accord Bender
Decl. ¶ 27. And even more damaging to law enforcement efforts, the Bureau asserts, would be
the release of details included in a typical Vaughn index, such as dates, geographical
information, and document descriptions. 4th Seidel Decl. ¶¶ 32–36; accord Bender Decl. ¶ 27–
3
Sentinel is the Bureau’s “next generation case management system” that documents
electronically “all FBI generated records . . . in case files.” 4th Seidel Decl. ¶ 12,
13
30. It argues that wrongdoers could piece together that information to ascertain “the scope of the
FBI’s reliance on the [filmmaker] technique (or lack thereof) by geographical area and the
targets and[/]or types of investigations in which the technique is most effectively used.” Bender
Decl. ¶ 27. Supposedly, wrongdoers could then “alter their patterns of activity, geographic areas
of operations, contacts, and other behaviors in efforts to circumvent FBI detection.” Id. ¶ 30.
The sensitive details the Bureau conceals are in the classified declaration and Vaughn
index it submitted ex parte for in camera review. See Notice of Lodging of Classified Decl. of
Michael G. Seidel and Classified Vaughn Index for Ex Parte, In Camera Review, ECF No. 48.
The in camera declaration and index provide information on all the documents responsive to
request items 6 and 7. For each document, the Vaughn index provides a description of its
contents along with a list of the FOIA exemptions the Bureau claims protect it from disclosure.
See Seidel Decl. ¶ 23. The declaration offers context for the documents and supplies additional
detail as to why they purportedly fall under the exemptions the Bureau says they do. See id. ¶ 7.
“[T]he use of in camera affidavits has generally been disfavored” in this Circuit.
Armstrong v. Exec. Off. of the President, 97 F.3d 575, 580 (D.C. Cir. 1996). Keeping an
affidavit from a plaintiff makes it harder for the plaintiff to challenge summary judgment and
deprives the court of a complete adverse perspective. Mobley v. Dep’t of Just., 870 F. Supp. 2d
61, 69 (D.D.C. 2012). Nevertheless, in camera inspection of an agency affidavit is warranted
when it is necessary to evaluate an agency’s exemption claims and a detailed description of the
withheld documents would risk disclosing information the agency seeks to protect. Elec. Priv.
Info. Ctr. v. U.S. Drug Enf’t Agency, 401 F. Supp. 3d 37, 44 (D.D.C. 2019); Am. Immigr.
Council v. U.S. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 235 (D.D.C. 2013); see also
Lykins v. U.S. Dep’t of Just., 725 F.2d 1455, 1463 (D.C. Cir. 1984) (upholding in camera review
14
of a letter because “extensive public justification would threaten to reveal the very information
for which a FOIA exemption is claimed”). Whether the circumstances call for an in camera
affidavit “is at the discretion of the trial court.” Lykins, 725 F.2d at 1465. But to minimize any
“negative impact on the effective functioning of the adversarial system,” a court that reviews an
agency affidavit in camera must clearly state its reasons for doing so and ensure that as much of
the affidavit as possible is made available to the opposing party. Armstrong, 97 F.3d at 580–81.
Similar to the standards governing in camera agency affidavits are those that apply to “no
number, no list” responses like the one the Bureau issued for the publicly unacknowledged
records. A no number, no list response is what it sounds like: it acknowledges that responsive
documents exist but does not number them or provide other descriptive information about them.
ACLU, 710 F.3d at 433. For such a response to be appropriate, it must be that “any description
of [the responsive] documents would effectively disclose validly exempt information.” Id. It
could be that a no number, no list response is proper for some subset of responsive documents
but not the remainder. Id. at 434. In any case, a no number, no list response is justified only “in
unusual circumstances, and only by a particularly persuasive affidavit.” Id. at 433.
Clearly, the inquiries for assessing the Bureau’s in camera affidavits and its no number,
no list response overlap significantly. Each requires determining whether high-level descriptions
of the disputed records are themselves protected by an exemption. The Court therefore conducts
both analyses concurrently. 4
4
Notably, the Bureau’s in camera affidavits provide information on all the documents
responsive to items 6 and 7 of the Committee’s request—not just documents relating to
nonpublic uses of the filmmaker technique. But even though the Bureau asserts a no number, no
list response for only the publicly unacknowledged investigation records, its mosaic theory for
keeping the high-level information in its in camera affidavits from the Committee applies
equally to the records relating to publicly acknowledged uses of the technique. The Court can
thus still evaluate the two issues at the same time. Because the Court ultimately finds that
15
The Bureau’s rationale for withholding descriptive information about the disputed
records rests on a mosaic theory. See Bender Decl. ¶ 30. “A mosaic theory posits that separate
disclosures of otherwise innocuous information could be assembled by a requester or other
person to reveal ‘how, when, [and] under which circumstances[] certain techniques are
employed’ by law enforcement and investigative agencies.” Whittaker v. U.S. Dep’t of Just., No.
18-cv-01434, 2020 WL 6075681, at *5 (D.D.C. Oct. 15, 2020) (quoting Reps. Comm. for
Freedom of the Press v. FBI, No. 15-cv-1392, --- F. Supp. 3d ----, 2020 WL 1324397, at *11
(D.D.C. Mar. 20, 2020)). If Exemption 7(E) protects the full mosaic from disclosure, it also
“shield[s] each individual piece” of the mosaic “to prevent anyone from constructing” it. Id.; see
also Citizens for Resp. & Ethics in Wash., 2021 WL 950415, at *4 (“[I]n some cases . . .
Exemption 7(E) allows agencies to withhold data constituting ‘part of a complex mosaic’ that, if
pieced together, would reveal law enforcement techniques, procedures, or guidelines.” (citation
omitted)). The theory “finds support in both Supreme Court and D.C. Circuit precedent
recognizing that ‘bits and pieces of data may aid in piecing together bits of other information
even when the individual piece is not of obvious importance in itself.’” Shapiro v. U.S. Dep’t of
Just., 239 F. Supp. 3d 100, 115 (D.D.C. 2017) (quoting CIA v. Sims, 471 U.S. 159, 178 (1985)).
The Bureau appropriately invokes a mosaic theory here. Forcing the agency to disclose
even high-level information about the records of its uses of the filmmaker technique would
reveal to wrongdoers how often, where, and when the agency uses the technique. There is little
question that divulging an overview of the Bureau’s use of the technique over the past eleven
years would constitute the disclosure of a law enforcement technique or procedure for purposes
Exemption 7(E) permits the Bureau to file in camera affidavits, it will use those affidavits to
gauge the agency’s withholdings of all documents responsive to request items 6 and 7.
16
of Exemption 7(E). Cf. Whittaker, 2020 WL 6075681, at *5 (“Plaintiff does not dispute that the
FBI’s strategic allocation of resources qualifies as a law enforcement technique or procedure.”);
Shapiro, 239 F. Supp. 3d at 118 (“Plaintiffs appear to concede that the FBI’s ‘investigative
priorities’ qualify as ‘techniques . . . for law enforcement’ for purposes of Exemption
7(E) . . . .”). Nevertheless, the Committee asserts that the Bureau has not demonstrated that
releasing such an overview would risk circumvention of the law. See Pl.’s Mot. at 30–40.
That position “understates just how low the threshold is to satisfy Exemption 7(E)’s
‘circumvention of the law’ requirement.” Whittaker, 2020 WL 6075681, at *5. Remember, the
exemption requires only that an agency “demonstrate logically how the release of the requested
information might create a risk of circumvention of the law.” Mayer Brown, 562 F.3d at 1194(emphasis added) (cleaned up) (quoting PHE, 983 F.2d at 251). The Bureau has satisfied that
“relatively low bar.” See Blackwell, 646 F.3d at 42. It makes sense that wrongdoers could
misuse information about where and in what circumstances the Bureau has used the filmmaker
technique over the past eleven years. If a certain FBI field office is associated with a high
number of responsive documents, for instance, wrongdoers in that office’s footprint may be more
cautious when approached by agents undercover as a film crew. See Shapiro, 239 F. Supp. 3d at
120 (“[K]nowing that the FBI has historically focused its enforcement efforts in a particular
region . . . might aid a criminal in circumventing the law.”). Likewise, if it turns out that the
Bureau uses the technique most frequently when investigating a certain type of crime,
wrongdoers perpetrating that crime may be discouraged from speaking to agents posing as
filmmakers. Cf. id. at 118 (“[A]ggregate information about the number of files or documents
that bear a designation for domestic terrorism/animal rights extremism may shed considerable
light on the overall resources that a particular office of the FBI has devoted, or is devoting, to
17
investigating related crimes.”). Furthermore, wrongdoers operating in a region or criminal
enterprise associated with a high number of responsive records could infer that the Bureau is
devoting significant resources to catching them and thus attempt to evade detection by relocating
their operations, shifting to a different type of crime, or lying low temporarily. See Whittaker,
2020 WL 6075681, at *5–6. Even releasing the total number of responsive records could give
wrongdoers an idea of how often the Bureau uses the filmmaker technique—and thus how much
effort they should put into avoiding it. Cf. James Madison Project v. Dep’t of Just., 208 F. Supp.
3d 265, 286 (D.D.C. 2016) (upholding agency’s no number, no list response under Exemption 5
because providing the number of responsive records would show “the level of importance”
agency lawyers attributed to the FOIA request’s subjects, which was itself privileged information
protected by the exemption). Although the Court cannot “assess with precision the likelihood
of” these harms, the Bureau has still “demonstrated some chance that disclosure . . . risks
circumvention of the law via a mosaic effect.” See Whittaker, 2020 WL 6075681, at *5. 5
The Committee raises two main counterpoints, but neither is persuasive. First, it suggests
that the disputed records may be so old that they would provide wrongdoers little insight into the
Bureau’s current practices. See Pl.’s Mot. at 35–36. The Committee faults the Bureau for failing
to include any “information about the actual or relative age of . . . the records at issue.” Id. at 35.
5
The Committee’s contrary belief that the Bureau has not shown a risk of circumvention
of the law may stem from its misunderstanding that the FOIA Improvement Act heightened the
foreseeability showing an agency must make to claim Exemption 7(E). See, e.g., Pl.’s Mot. at
36–38. Indeed, the Committee at one point complains that there must be little risk of wrongdoers
evading the law because the Bureau failed to identify any fallout from the news coverage that
publicized its use of the filmmaker technique during the Bundy investigation. Id. at 34. But as
the Court explained earlier, the FOIA Improvement Act worked no change to Exemption 7(E)’s
substantive standard. See supra section IV.B.1. All the exemption requires is that the
information “could reasonably be expected to risk circumvention of the law,” not that is has done
so before. See 5 U.S.C. § 552(b)(7)(E).
18
It relies on Shapiro v. United States Department of Justice, where a court acknowledged that
knowing how the Bureau historically “focused its enforcement efforts . . . might aid a criminal in
circumventing the law” but asked the agency to produce more information about the records
because it was unclear “whether the relevant investigations are open, whether they closed in the
past few years, or whether they closed decades ago.” 239 F. Supp. 3d at 120. The Committee
also cites another case where a court required Customs and Border Protection to release
historical staffing statistics after recognizing that the agency’s practices had “changed
dramatically in recent months.” Fams. for Freedom v. U.S. Customs & Border Prot., 837 F.
Supp. 2d 287, 299–300 (S.D.N.Y. 2011). Together, these cases indicate that information about
an agency’s historical law enforcement practices is unlikely to help wrongdoers circumvent the
law if that information is outdated. But there is no reason to believe that is true of the
information the Committee requested. Because the Committee sought only records generated
since the start of 2010, Defs.’ SMF ¶ 1, all the responsive records are of relatively recent vintage.
See 4th Seidel Decl. ¶ 13 (describing the Bureau’s search as limited to records created since
January 1, 2010). And nothing suggests that the Bureau has meaningfully changed its use of the
filmmaker technique over that time period. See Citizens for Resp. & Ethics in Wash., 2021 WL
950415, at *5. Indeed, the Committee presumably submitted its FOIA request not only to learn
about the recent history of the filmmaker technique but also to “shed light” on the Bureau’s
current practice. See Pl.’s Mot. at 3.
The Committee next argues that, even if the Bureau can properly withhold information
describing an investigation’s location and subject-matter focus, there are other details that it can
disclose without risking circumvention of the law. Pl.’s Mot. at 32. Not necessarily. Many of
the details in the Bureau’s in camera Vaughn index could easily serve as proxies for the kinds of
19
data that the Committee appears to concede are sensitive. When coupled with publicly available
information such as news reports or press releases, details like the names of those involved in an
investigation or the addresses of key locations could reveal which Bureau investigations included
the use of the filmmaker technique. The same could be true for the date associated with a
document if the document’s description mentions a public event or investigatory milestone.
And as the Committee admits, see Pl.’s Mot. at 36 n.6, even releasing the case numbers
associated with each responsive document would reveal geographic and subject-matter-related
information because that information is incorporated into the Bureau’s file-numbering system.
See Poitras v. Dep’t of Homeland Sec., 303 F. Supp. 3d 136, 159 (D.D.C. 2018) (approving
withholding of FBI case numbers because they identified the agency’s investigative interests);
see also Shapiro, 239 F. Supp. 3d at 118 & n.5 (collecting cases where courts have found that
file numbers revealed law enforcement techniques). The whole purpose of the mosaic theory is
to guard against the misuse of pieces of these seemingly “innocuous” pieces of information that
could “reveal ‘how, when, [and] under which circumstances[] certain techniques are employed’
by law enforcement and investigative agencies.” Whittaker, 2020 WL 6075681, at *5.
In attacking the sufficiency of the Bureau’s public affidavits, the Committee never quite
says what additional information it wants. It suggests that the Bureau could have provided
descriptions of the requested records without revealing sensitive information like an
investigation’s geographic focus. See Pl.’s Mot. at 32. But that is essentially what the Bureau’s
two public declarations do—albeit at a high level. See CREW, 746 F.3d at 1088 (“Agency
affidavits sometimes take the form of a ‘Vaughn index,’ but there is ‘no fixed rule’ establishing
what such an affidavit must look like. ‘[I]t is the function, not the form, of the index that is
important.’” (alteration in original) (citations omitted)). They explain that the withheld
20
documents contain, among other things, information about the requirements for authorizing a
filmmaker operation, when the Bureau might use the filmmaker technique over others, and
specific details about how agents used the technique in the field. 4th Seidel Decl. ¶ 36; Bender
Decl. ¶ 28. The declarations also list in general terms the kinds of documents withheld: “1A
envelopes (FD-340), Electronic Communications (‘ECs’), forms, electronic mail messages,
Sentinel Import Form (FD-1036), FD-302s, FBI letters, and other evidentiary documents.” 4th
Seidel Decl. ¶ 36; Bender Decl. ¶ 28. And the declarations explain at length why the information
within the withheld documents fit within each of the exemptions the Bureau claims. 4th Seidel
Decl. ¶¶ 42–163; Bender Decl. ¶¶ 31–66. When it comes to Exemption 7(E), the declarations
break their explanations down further. For instance, they say that the documents contain
information about how the Bureau collects information for certain kinds of investigations, 4th
Seidel Decl. ¶¶ 133–34, the focuses and targets of specific investigations, id. ¶¶ 140–42, and
details of undercover investigations (presumably those using the filmmaker technique), id. ¶ 149.
The Committee does not grapple with any of these justifications for the withholdings. See Pl.’s
Mot. at 29–40.
After reviewing the in camera declaration and Vaughn index, the Court concludes that
the Bureau’s public declarations accurately describe the withheld records. The Committee has
presented no valid ground for second-guessing the agency’s representations by conducting an in
camera review of a sample of the records. See Larson, 565 F.3d at 870 (“If the agency’s
affidavits ‘provide specific information sufficient to place the documents within the exemption
category, if this information is not contradicted in the record, and if there is no evidence in the
record of agency bad faith, then summary judgment is appropriate without in camera review of
the documents.’” (citation omitted)). From the Court’s careful review of all the Bureau’s
21
affidavits, it appears that both the in camera affidavits and the records of nonpublic uses of the
filmmaker technique contain sensitive information protected by Exemption 7(E). Because a
wrongdoer could use even seemingly harmless details from those materials—individually or
collectively—to gain insight into when, where, and how FBI agents use the technique, the
Bureau justifiably withheld them categorically and in full. 6
b. The 10 Pages of Cleveland Field Office Communications
As described earlier, the Bureau released in part 10 pages of communications to and from
its Cleveland Field Office regarding a proposed undercover operation. See 2d Townsend Decl.,
Ex. N; see also 4th Seidel Decl. ¶ 86. The released communications are heavily redacted, and
there is a code by each redaction signifying what exemption the redaction relies on. See 2d
Townsend Decl., Ex. N. Almost every redaction rests at least in part on Exemption 7(E). 7 More
specifically, the codes indicate that the redactions omit information regarding agents’ collection
and analysis of information, the identity and location of FBI units, the focus of the investigation,
the undercover aspects of the operation, the targets of the investigation and how agents surveilled
6
Notably, Exemption 7(E) permits the Bureau to withhold all the records relating to
nonpublic uses of the filmmaker technique even though it did not claim the exemption for a
small number of those records on an individual basis. When an agency demonstrates that a
mosaic of information is categorically exempt from disclosure, each tile in that mosaic falls
under the relevant exemption’s protective umbrella. See Reps. Comm., 2020 WL 1324397, at
*11 (“While any one piece of information might not compromise the FBI’s techniques or
procedures, pieces of information can be assembled—in mosaic fashion—to provide a
framework to determine how, when, under which circumstances, certain techniques are
employed.” (cleaned up)); Shapiro, 239 F. Supp. 3d at 114–16 (approving the Bureau’s argument
that Exemption 7(E) protected records under a mosaic theory, even though the records “standing
alone” would not necessarily “disclose protected law enforcement techniques or procedures”).
7
The sole exception is a section under the heading “Subjects.” See 2d Townsend Decl.
Ex. N. For that redaction, the Bureau claims Exemptions 6 and 7(C). Id. Accompanying codes
signal that the redaction conceals the names or identifying information of third parties of
investigative interest. See id.; 4th Seidel Decl. ¶ 103. The Committee does not challenge this
withholding. See Pl.’s Mot. at 25 n.5.
22
them, and what payments agents made to implement investigative techniques. See id.; Public
Vaughn Index.
The Bureau’s declarations elaborate on the coded justifications. They explain that
disclosing redacted information in the Cleveland Field Office communications would reveal
details about how and when agents use the filmmaker and other techniques, which would allow
savvy wrongdoers to “take countermeasures” to reduce their effectiveness. 4th Seidel Decl.
¶ 133; see also id. ¶¶ 149, 161. Likewise, the declarants assert that releasing nonpublic
information about the focus of an investigation or how agents pursued an investigation’s targets
could give wrongdoers insight into the Bureau’s intelligence-gathering capabilities, possibly
jeopardizing similar efforts in the future. Id. ¶¶ 141, 146. In addition, the declarants argue that
publicizing the names and locations of specialized FBI units involved in a specific operation
could reveal what kinds of crimes and geographic areas the agency prioritizes. Id. ¶ 135.
According to them, even disclosing how much the Bureau paid would give wrongdoers a
glimpse of how it allocates its limited resources. Id. ¶ 150. With that kind of information, the
declarants say, a wrongdoer could adjust his criminal activities to take advantage of Bureau
“weaknesses.” Id. ¶ 150.
Between the agency declarations and the redacted communications, the Bureau has
established a logical connection between its redactions and would-be criminals’ ability to
circumvent the law. Revealing details as to how agents approached an investigation may very
well create a risk that wrongdoers will exploit the information to violate the law or escape the
consequences of doing so. Accordingly, the Bureau has passed the “relatively low bar” for
withholding much of the communications under Exemption 7(E). In fact, nowhere does the
Committee single out the 10 pages’ redactions as inadequately supported.
23
The Committee instead challenges the Bureau’s segregability assessment. See Pl.’s Mot.
at 12–14. But the agency has done what FOIA requires. A review of the redacted documents
supports the Bureau’s assertion that it made “[e]very effort” to turn over segregable information.
See 4th Seidel Decl. ¶ 38; see also Sussman, 494 F.3d at 1117 (“Agencies are entitled to a
presumption that they complied with the obligation to disclose reasonably segregable material.”).
Although the 10 pages are heavily redacted, it is unsurprising that it would be difficult to parse
out information that falls under headings like “Undercover Technique,” “Confidential Human
Sources,” and “Budget.” See 2d Townsend Decl., Ex. N; see also Hodge v. FBI, 764 F. Supp. 2d
134, 144 (D.D.C. 2011) (rejecting plaintiff’s argument that redaction of “large chunks of
material . . . evidences defendants’ failure to segregate” because declarations and annotations
“identif[ied] the exemptions claimed . . . for each redaction”), aff’d, 703 F.3d 575 (D.C. Cir.
2013); cf. Mead Data Ctr., 566 F.2d at 261 (“[I]f only ten percent of the material is non-exempt
and it is interspersed line-by-line throughout the document, an agency claim that it is not
reasonably segregable because . . . the result would be an essentially meaningless set of words
and phrases might be accepted.”). The Bureau rightly claimed Exemption 7(E) to withhold the
information the Committee seeks from the Cleveland Field Office communications. It does not
need to take any further action on those records.
c. The 26 Pages Withheld in Full
Related to the Cleveland Field Office communications are the 26 pages for which the
Bureau provided page-by-page exemptions to justify withholding them in full. One can tell that
the two sets of records are related because, as mentioned, the Bureau’s public Vaughn index
indicates that they are in the same file. See Public Vaughn Index. That index shows that the 26
pages consist of two 13-page documents with the same claimed exemptions for each of their 13
24
pages. See id. For every page, the Bureau says that Exemption 7(E) applies because the
information deals with the investigative focus of a specific investigation and an undercover
operation. See id. Each document also contains pages with information about FBI units and
monetary payments for investigative techniques. See id. The Bureau provides additional
information on what the 26 pages consist of and why it withheld them in its in camera affidavits.
Once again, the Bureau’s declarants assert that releasing the pages’ discussion of an
undercover operation could tip off wrongdoers as to when, how, and where the Bureau is likely
to use the filmmaker technique. See 4th Seidel Decl. ¶¶ 135, 141, 149–150. The Court agrees.
Based on the Bureau’s in camera submissions, the pages appear to be rife with the kinds of
“confidential details” that Exemption 7(E) protects because revealing them would “reduce or
nullify” a law enforcement technique’s effectiveness. See Elec. Frontier Found., 384 F. Supp.
3d at 10 (first quoting Sussman, 494 F.3d at 1112; and then quoting Vazquez v. U.S. Dep’t of
Just., 887 F. Supp. 2d 114, 116 (D.D.C. 2012)). Moreover, the Bureau’s description of the
documents corroborates an agency declarant’s claim that “no information could be reasonably
segregated for release” without resulting in only “disjointed words, phrases, or sentences,
which . . . would have minimal or no informational content.” See 4th Seidel Decl. ¶ 164; see
also Mead Data Cent., 566 F.2d at 260 (“It has long been a rule in this Circuit that non-exempt
portions of a document must be disclosed unless they are inextricably intertwined with exempt
portions.”). The Bureau was therefore entitled to withhold the 26 pages in their entirety.
d. The Bureau’s Filmmaker Impersonation Policy
The last set of records that the Bureau seeks to protect under Exemption 7(E) is a policy
entitled Undercover Activities: Posing as a Member of the News Media or a Documentary Film
Crew. 4th Seidel Decl. ¶ 25. When the agency released the policy to the Committee, it disclosed
25
the vast majority of the policy’s language. It made just a handful of redactions per page, and the
redactions covered words and excerpts of sentences as opposed to full passages. See 2d
Townsend Decl., Ex. M. Next to each redaction is a code designating why the agency says
Exemption 7(E) applies. See id. The codes indicate that the information redacted from the
policy relates to how the Bureau conducts undercover operations, the investigatory focus of
operations, procedures used in national security investigations, and the names and locations of
specialized FBI units. See id.; see also Public Vaughn Index. 8 As with the Cleveland Field
Office communications, the Bureau’s declarations describe in more detail the kind of
information associated with each code. See 4th Seidel Decl. ¶¶ 135, 140, 149, 152; Bender Decl.
¶¶ 35–36, 38, 47, 53–54.
Even without the redacted information, the policy’s basic terms are clear. At the outset,
the document states that its purpose is to “set forth interim policy in support of the [redacted]
regarding approval levels for sensitive circumstances specifically in situations in which
employees represent, pose, or claim to be members of the news media or a documentary film
crew.” 2d Townsend Decl., Ex. M. It provides that, in general, the FBI’s Deputy Director must
approve a proposed filmmaker operation after consultation with the Deputy Attorney General.
Id. The Deputy Director must then report approved filmmaker operations to the FBI’s
Undercover Review Committee. Id. In certain “urgent[]” circumstances, the policy permits
lower-level FBI officials to authorize a filmmaker operation on an interim basis. Id. An official
that grants interim authorization for a filmmaker operation must submit an application to the
Deputy Director and Undercover Review Committee within 48 hours. Id.8
Some of the redactions remove FBI phone numbers, email addresses, IP addresses, and
nonpublic intranet addresses. See 2d Townsend Decl., Ex. M; 4th Seidel Decl. ¶ 132. The
Committee does not seek that information. See Pl.’s Mot. at 36 n.6.
26
The Reporters Committee complains that the Bureau did not provide enough detail on the
information it redacted or its justifications for the redactions. Pl.’s Mot. at 12. But in the context
of a policy whose basic tenets are apparent and for which the redactions are fairly specific, the
coded justifications along with longer descriptions in the Bureau’s declarations “provide[] ‘a
reasonable basis to evaluate [each] claim of privilege.’” See Hodge, 764 F. Supp. 2d at 141(second alteration in original) (citation omitted) (“Because the function, and not the form, of the
index is dispositive, our Circuit has upheld similar agency declarations coupled with coded
categories, in lieu of Vaughn indices.”). Indeed, the redactions are so well-tailored that “[a]ny
more specificity would have entailed disclosure of the very information withheld.” See Keys v.
U.S. Dep’t of Just., 830 F.2d 337, 350 (D.C. Cir. 1987); see also Fischer v. U.S. Dep’t of Just.,
596 F. Supp. 2d 34, 44 (D.D.C. 2009).
Upon review of the mostly released policy and the Bureau’s declarations, the Court is
convinced that the agency properly withheld the redacted information under Exemption 7(E) and
demonstrated that it could not reasonably disclose more. The policy and declarations indicate
that the redacted information concerns the circumstances in which the Bureau might conduct a
filmmaker operation, what specialized FBI units would be involved in approving or participating
in such an operation, and how long such an operation can last. See 2d Townsend Decl., Ex. M;
4th Seidel Decl. ¶¶ 140–41; Bender Decl. ¶¶ 47, 53–54. As the Bureau’s declarants explain,
revealing that information could enable wrongdoers “to discern the FBI’s use of undercover
operations, thus allowing them to detect FBI undercover operations” and respond accordingly.
Bender Decl. ¶ 47. The Bureau has therefore shown that the redacted excerpts of its filmmaker
impersonation policy could logically lead to circumvention of the law. And given the Bureau’s
precise redactions, the Court sees nothing to make it doubt that the agency disclosed as much as
27
reasonably possible. See Hodge, 764 F. Supp. 2d at 143–44; Fischer, 596 F. Supp. 2d at 44; see
also Sussman, 494 F.3d at 1117. The Bureau does not need to release more of the filmmaker
impersonation policy.
2. Exemption 7(A)
The Bureau withholds the last remaining set of records categorically under Exemption
7(A). That exemption protects “records or information compiled for law enforcement purposes”
so long as producing them “could reasonably be expected to interfere with enforcement
proceedings.” 5 U.S.C. § 552(b)(7)(A). It is meant “to prevent disclosures which might
prematurely reveal the government’s cases in court, its evidence and strategies, or the nature,
scope, direction, and focus of its investigations, and thereby enable suspects to establish defenses
or fraudulent alibis or to destroy or alter evidence.” Maydak v. U.S. Dep’t of Just., 218 F.3d 760,
762 (D.C. Cir. 2000). The exemption “reflects the Congress’s recognition that ‘law enforcement
agencies ha[ve] legitimate needs to keep certain records confidential, lest the agencies be
hindered in their investigations or placed at a disadvantage when it [comes] time to present their
case.’” CREW, 746 F.3d at 1096 (alterations in original) (quoting NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 224 (1978)). An agency can withhold law enforcement records under
Exemption 7(A) if it demonstrates that “disclosure (1) could reasonably be expected to interfere
with (2) enforcement proceedings that are (3) pending or reasonably anticipated.” Id. (quoting
Mapother v. Dep’t of Justice, 3 F.3d 1533, 1540 (D.C. Cir. 1993)).
As mentioned, the Bureau says that Exemption 7(A) protects 54 pages of records relating
to its investigation of Cliven Bundy. Bender Decl. ¶ 7. Even though a district court dismissed
the indictments of Bundy, two of his sons, and a supporter, a Bureau declarant explains that “the
investigation is still ongoing due to superseding indictments on other subjects.” Id. ¶ 8. The 54
28
pages contain material relevant to those subjects, one of whom is Gregory Burleson. Id.
Burleson was convicted of a variety of counts and has an appeal in his case pending. Id.; see
also Notice of Appeal, United States v. Burleson, No. 16-cr-46 (D. Nev. June 25, 2021), ECF
No. 3,546 (appealing recent denial of motion for new trial). According to the Bureau, releasing
the 54 pages could interfere with its pending investigation by giving subjects insight into its
methods and the evidence it collected, perhaps allowing them to destroy or tamper with
evidence. Bender Decl. ¶ 8.
The Committee takes issue with the Bureau’s justification. It argues that Exemption 7(A)
has no business protecting records of the Bundy investigation because the case against him is
over. See Pl.’s Mot. at 15–16; Pl.’s Reply at 5–7. Moreover, the Committee continues, it makes
no sense that documents from an investigation arising out of events that took place over six years
ago would still be useful to law enforcement proceedings. Pl.’s Reply at 7. But the Bureau has
explained that the 54 pages contain information relevant to the ongoing investigation of other
subjects. See Boyd v. Crim. Div. of U.S. Dep’t of Just., 475 F.3d 381, 386 (D.C. Cir. 2007)
(upholding Exemption 7(A) withholding despite amicus implying “that no investigations
involving [one target] were still active” because “the government’s affidavit state[d] that the
investigation at issue involves the ‘ongoing collection of data’ and that the withheld records
relate to ‘potential criminal proceedings against individuals’”). Indeed, the Bureau named
Burleson as one subject whom the records relate to, and enforcement proceedings against him
are still ongoing. See Kidder v. FBI, 517 F. Supp. 2d 17, 27 (D.D.C. 2007) (“A pending appeal
of a criminal conviction qualifies as a pending or prospective law enforcement proceeding for
purposes of Exemption 7(A).”). The Committee’s mere suggestion that the standoff occurred too
long ago for an enforcement proceeding to be occurring is not enough to overcome the
29
presumption of good faith afforded to agency affidavits. See Hammouda v. U.S. Dep’t of Just.
Off. of Info. Pol’y, 920 F. Supp. 2d 16, 24 (D.D.C. 2013) (explaining that the nine- to eleven-
year-old age of records could not rebut the presumption of good faith afforded to an agency
declaration that said an investigation was ongoing). The Bureau has shown that the withheld
records relate to law enforcement proceedings that are pending or reasonably anticipated.
Yet “Exemption 7(A) does not authorize automatic or wholesale withholding of records
or information simply because the material is related to an enforcement proceeding.” North v.
Walsh, 881 F.2d 1088, 1097 (D.C. Cir. 1989). An agency must also demonstrate that disclosure
of withheld records would interfere with the related proceeding. Id. And when an agency seeks
to withhold records categorically under Exemption 7(A), as the Bureau does, its task becomes
“three-fold.” CREW, 746 F.3d at 1098 (quoting Bevis v. Dep’t of State, 801 F.2d 1386, 1389
(D.C. Cir. 1986)). “First, it must define its categories functionally. Second, it must conduct a
document-by-document review in order to assign documents to the proper category. Finally, it
must explain to the court how the release of each category would interfere with enforcement
proceedings.” Id. (quoting Bevis, 801 F.2d at 1389–90).
The Bureau has not done any of that. Rather than dividing the withheld documents into
functional categories, it merely outlines the kinds of documents that comprise the 54 pages: “The
document types at issue within the publicly acknowledged documents withheld pursuant to
Exemption 7(A) are FD-1057 – Electronic Communications (“ECs”), FD-302 – internal FBI
interview forms, FBI letters, and other evidentiary documentation.” Bender Decl. ¶ 8 n. 12.
Those descriptions are not functional; they do not provide enough information to allow the Court
“to trace a rational link between the nature of the document and the alleged likely interference.”
See Crooker v. Bureau of Alcohol, Tobacco & Firearms, 789 F.2d 64, 67 (D.C. Cir. 1986).
30
Indeed, they “give absolutely no indication of the substance of the information contained” at all.
See Bevis, 801 F.2d at 1390 (holding that the Bureau could not justify withholding documents
using categorical descriptions like “teletypes,” “airtels,” or “letters”).
Nor does the Bureau offer a category-by-category explanation of how release of the
withheld documents would interfere with enforcement proceedings. See CREW, 746 F.3d at
1099 (remanding to the agency for more explanation when it “identifie[d] two distinct categories
of documents—FD–302s and investigative materials—[but] never explain[ed] how the specific
risks entailed in premature disclosure of one category of document might differ from risk of
disclosure of the other”). All it says is that release of the withheld 54 pages “could result in
foreseeable harms including but not limited to providing investigative subjects insight into what
and how the FBI gathered evidence of their wrongdoing and allowing them to destroy or tamper
with evidence; and/or provide insight into the FBI’s investigative approach.” Bender Decl. ¶ 8.
That bland explanation falls far short of what FOIA requires. “[T]o prevail under Exemption
7(A), the government must show, by more than conclusory statement, how the particular kinds of
investigatory records requested would interfere with a pending enforcement proceeding.” North,
881 F.2d at 1097 (quoting Campbell v. Dep’t of Health & Hum. Servs., 682 F.2d 256, 259 (D.C.
Cir. 1982)); see also Voinche v. FBI, 46 F. Supp. 2d 26, 31 (D.D.C. 1999) (rejecting the Bureau’s
Exemption 7(A) claim because the agency “ma[de] only conclusory statements that the release of
the file as a whole would result in the described adverse effects on the investigation”). The
Bureau leaves open too many questions to make that showing. For example, given that Burleson
was tried and convicted, did the Bureau already disclose the information it now withholds in
criminal discovery? If it did, how would releasing that information here interfere with his
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ongoing case? The Bureau does not say, so the Court is left to guess. Similar questions arise
with respect to other individuals under investigation. More of an explanation is required.
As a result, the Bureau has not earned summary judgment with respect to the documents
it categorically withheld under Exemption 7(A). That said, the Committee’s request for
summary judgment is premature too. The agency can submit new affidavits with the information
necessary to evaluate whether it properly claimed the exemption. 9 Until then, there is not yet a
need to decide whether, as the Bureau asserts, “other underlying exemptions” apply. See 4th
Seidel Dec. ¶ 38.
* * *
To summarize, the Bureau has properly withheld most of the information that the
Committee seeks. Exemption 7(E) permits it to withhold the requested information in four of the
five sought-after records sets. Because Exemption 7(E) covers those records, the Court does not
need to determine whether other exemptions might also apply. But for records the Bureau claims
are categorically exempt under Exemption 7(A), the Bureau is not entitled to summary judgment.
It should submit supplemental affidavits to justify that withholding. Finally, the Committee has
presented no good reason to audit the agency’s affidavits by sampling some of the disputed
records for in camera review. While the Bureau’s explanation for withholding some records
categorically under Exemption 7(A) was lacking, the affidavits were otherwise sufficient and in
9
In its briefs, the Committee also asserts that the FOIA Improvement Act’s heightened
foreseeability requirement applies to claims of Exemption 7(A). See Pl.’s Mot. at 18. The Court
doubts the FOIA Improvement Act materially alters the standard articulated in Exemption 7(A)’s
text for much the same reasons it held the Act did not do so for Exemption 7(E). See supra
section IV.B.1; see also 5 U.S.C. § 552(b)(7)(A) (exempting law enforcement records that
“could reasonably be expected to interfere with enforcement proceedings” (emphasis added)).
Nevertheless, because the Bureau failed to properly justify its withholdings under Exemption
7(A), the Court does not need to reach the question of the FOIA Improvement Act’s application.
The parties can address this issue in their next round of briefing.
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no way suggested that the agency misrepresented any record’s contents. See Larson, 565 F.3d at
870. The Court will not yet exercise its “broad discretion” to demand in camera review of the
disputed records. See Loving v. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008) (quoting
Armstrong, 97 F.3d at 577–78).
V. CONCLUSION
For the foregoing reasons, Defendants’ motion for partial summary judgment (ECF No.
47) is GRANTED IN PART AND DENIED IN PART, Plaintiff’s motion for partial summary
judgment (ECF No. 49) is DENIED, and Plaintiff’s motion for in camera review (ECF No. 50)
is DENIED. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: July 12, 2021 RUDOLPH CONTRERAS
United States District Judge
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