Project for Privacy and Surveillance Accountability, Inc. v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PROJECT FOR PRIVACY AND :
SURVEILLANCE ACCOUNTABILITY, :
INC., :
:
Plaintiff, : Civil Action No.: 21-2362 (RC)
:
v. : Re Document Nos.: 31, 34
:
UNITED STATES DEPARTMENT OF :
JUSTICE, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S CROSS-
MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Project for Privacy and Surveillance Accountability, Inc. (“the Project”) sued
Defendant United States Department of Justice (“DOJ”) to compel the agency to disclose certain
records under the Freedom of Information Act (“FOIA”). The Federal Bureau of Investigation
(“FBI”), a component of the DOJ, conducts foreign intelligence surveillance that may
incidentally collect information related to U.S. persons. When incidental collection occurs,
intelligence agencies “mask” the names of U.S. persons to protect their identities. Names may
be “unmasked,” however, in certain circumstances. The Project submitted a FOIA request to the
FBI seeking any correspondence between members of Congress and a federal agency concerning
the unmasking of Congressmen and Senators. The FBI issued a Glomar response based on
various FOIA exemptions. This Court partially denied the DOJ’s motion for summary judgment,
concluding that documents discussing congressional unmasking as a matter of legislative
interest, policy, or oversight may not fall within FOIA’s exemptions. The FBI located 220
responsive pages, releasing 100 pages in whole or in part. The Project now contests the FBI’s
partial redactions of its Intelligence Program Policy Guide and an email summarizing
counterterrorism investigations under Exemptions 3, 7(D), and 7(E). Because the FBI properly
applied the FOIA exemptions to the two records, the Court grants the DOJ’s motion for summary
judgment and denies the Project’s cross-motion for summary judgment.
II. BACKGROUND
The Court summarized the mechanics of the Foreign Intelligence Surveillance Act
(“FISA”), as well as unmasking, in its previous memorandum opinion in this case. See Mem.
Op., ECF No. 20; 633 F. Supp. 3d 108 (D.D.C. 2022). The Project sent the FBI a FOIA request
on December 13, 2019, seeking documents responsive to 44 categories of information. See Ex.
A to Compl., ECF No. 1-1. Item 35 on that list requested the following records:
All correspondence between individual Senators or Congressmen and any agency,
or between an agency and Congressional leadership and/or either or both
Congressional intelligence committees, concerning the unmasking of
Congressmen or Senators, including but not limited to correspondence from or to
Senator Rand Paul (R-KY), Senator Lindsey Graham (R-SC), Congresswoman
Jane Harmon (D-CA), Congressman Dennis Kucinich (D-OH), Congressman Lou
Barletta (R-PA), Congresswoman/Senator-elect Marsha Blackburn (R-TN),
Congressman Chris Collins (R-NY), Congressman Tom Marino (R-PA),
Congressman Devin Nunes (R- CA), Congressman Sean Duffy (R-WI),
Congressman Trey Gowdy (R-SC), and Congressman Dennis Ross (R-FL).
Id. at 5–6. On July 7, 2020, the FBI assigned a separate tracking number to Item 35. Ex. B to
Compl., ECF No. 1-2.
On October 13, 2020, the FBI denied the Project’s request for records related to Item 35,
stating that “the FBI cannot confirm or deny the existence of any records about your subject as
the mere acknowledgment of such records existence or nonexistence would in and of itself
trigger harm to national security interests.” Ex. C to Compl. at 1, ECF No. 1-3. The Project
2
appealed this so-called “Glomar response” to the DOJ’s Office of Information Policy, Ex. E to
Seidel Decl., ECF No. 9-2, which affirmed the FBI’s decision, Ex. F to Compl., ECF No. 1-6.
The Project filed this lawsuit, and the DOJ moved for summary judgment, contending
that it properly issued a Glomar response under FOIA Exemptions 1, 3, 6, 7(C) and 7(E). See
generally Def.’s Mot. Summ. J., ECF No. 9-1. The Project filed a cross motion for summary
judgment. See generally Pl.’s Cross-Mot. Summ. J., ECF No. 13-1. This Court concluded that
“[t]he FBI’s Glomar response as to ‘operational documents’ is justified by FOIA Exemptions 1
and 3.” Mem. Op. at 12. Declarations from Michael G. Seidel, FBI Section Chief of the
Record/Information Dissemination Section of the Information Management Division,
sufficiently demonstrated that any relevant information is properly classified and therefore
subject to Exemption 1. Id. at 12–13. In addition, the FBI’s Glomar response was justified
under Exemption 3 because the materials fell within section 102A(i)(1) of the National Security
Act of 1947, 50 U.S.C. § 3024, which mandates withholding of intelligence sources and
methods. Id. at 16–17.
The Court denied the DOJ summary judgment, however, regarding its reliance on
exemptions to withhold “policy documents,” which “discuss congressional unmasking as a
matter of legislative interest, policy, or oversight.” Id. at 12. These policy documents, the Court
observed, would not necessarily be “protected under FOIA Exemptions 1, 3, 6, 7(C), and 7(E),
which the FBI claims supports its blanket Glomar response.” Id. Policy documents “would not
necessarily reveal sensitive information about the FBI’s intelligence activities, sources, or
methods under Exemptions 1 and 3.” Id. at 20–21. Nor would they “implicate individual
privacy rights” under Exemptions 6 or 7(C) or “necessarily disclose any law enforcement
procedure, technique, or guideline” under Exemption 7(E). Id. at 21. The Court ordered the FBI
3
to “(1) conduct a search for ‘policy documents’; and (2) produce to the Project any non-exempt
portions of such records.” Order, Mot. Summ. J., ECF No. 19. The Court also instructed the
FBI to renew its motion for summary judgment after conducting the search. Id.
The FBI conducted its search, finding 220 pages of responsive records. Seidel Decl. ¶ 4,
ECF No. 31-3. The FBI released 28 of those pages in full, released 72 pages in part, and
withheld 118 pages in full pursuant to FOIA Exemptions. 1 Id. The documents released in full
include two March 2017 letters from congressional committees and a document titled “SSCI
Transmittal and Document Receipt.” Ex. C. to Seidel Decl., ECF No. 31-3. The FBI released
several other documents with redactions, including a 4-page email with the subject line “10/27
CTD Close Out” and an Intelligence Program Policy Guide. Ex. B to Lynch Decl., ECF No. 35-
1.
The FBI withheld parts of both records under Exemption 3 as containing information
protected by Section 102A(i)(1) of the National Security Act of 1947. Seidel Decl. ¶¶ 6–7, 13;
Ex. C to Seidel Decl. The FBI also withheld portions of both documents pursuant to Exemption
7(E) as disclosing the FBI’s investigative focus, law enforcement techniques, and operational
directives in a manner that could reasonably be expected to risk circumvention of the law. Seidel
Decl. ¶¶ 24–26; Ex. C to Seidel Decl. Finally, the FBI made one redaction to the email pursuant
to Exemption 7(D) to protect the identity of a confidential source. Seidel Decl. ¶¶ 6–7; 20–23;
Ex. C to Seidel Decl. The Project contests the FBI’s application of these FOIA exemptions to
the records. The DOJ now renews its motion for summary judgment, ECF No. 31, and the
Project cross-moves for summary judgment, ECF No. 34.
1
The FBI withheld two pages as “duplicates of pages accounted for elsewhere in
the FBI’s productions.” Seidel Decl. ¶ 33.
4
III. LEGAL STANDARD
The Freedom of Information Act is meant “to pierce the veil of administrative secrecy
and to open agency action to the light of public scrutiny.” U.S. Dep’t of State v. Ray, 502 U.S.
164, 173 (1991) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)). It “directs that
‘each agency, upon any request for records . . . shall make the records promptly available to any
person’ unless the requested records fall within one of the statute’s nine exemptions.” Loving v.
Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (quoting 5 U.S.C. § 552(a)(3)(a)). “Consistent
with the Act’s goal of broad disclosure,” those exemptions should be “given a narrow compass.”
U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 151 (1989). “The agency bears the burden of
establishing that a claimed exemption applies.” Citizens for Resp. and Ethics in Wash. v. U.S.
Dep’t of Just., 746 F.3d 1082, 1088 (D.C. Cir. 2014).
Because FOIA cases do not ordinarily involve disputed facts, they “are typically and
appropriately decided on motions for summary judgment.” Moore v. Bush, 601 F. Supp. 2d 6, 12
(D.D.C. 2009) (citations omitted). Summary judgment is warranted “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In assessing whether the movant has met that burden, a
court “must view the evidence in the light most favorable to the nonmoving party, draw all
reasonable inferences in his favor, and eschew making credibility determinations or weighing the
evidence.” Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008) (citations omitted). “This
burden does not shift even when the requester files a cross-motion for summary judgment
because ‘the Government ultimately has the onus of proving that the documents are exempt from
disclosure.’” Hardy v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 243 F. Supp. 3d
5
155, 162 (D.D.C. 2017) (cleaned up) (quoting Pub. Citizen Health Rsch. Grp. v. Food and Drug
Admin., 185 F.3d 898, 904–05 (D.C. Cir. 1999)).
Even if a FOIA exemption applies, an agency cannot withhold information unless it also
“reasonably foresees that disclosure would harm an interest protected by” the exemption. 5
U.S.C. § 552(a)(8)(A)(i)(I); see Leopold v. Dep’t of Just., 94 F.4th 33, 37 (D.C. Cir. 2024)
(“Even if an exemption covers an entire agency record, the agency still must release any
reasonably segregable information within the record that could be disclosed without causing
reasonably foreseeable harm to an interest that the exemption protects.”); Reps. Comm. for
Freedom of the Press v. Fed. Bureau of Investigation, 3 F.4th 350, 369 (D.C. Cir. 2021)
(explaining the FOIA Improvement Act of 2016’s “foreseeable harm” requirement). This
requirement does not apply, however, to Exemption 3. See Leopold, 94 F.4th at 37.
The Supreme Court and the D.C. Circuit “have expressly recognized the propriety of
deference to the executive in the context of FOIA claims which implicate national security.”
Ctr. for Nat. Sec. Stud. v. U.S. Dep’t of Just., 331 F.3d 918, 927 (D.C. Cir. 2003). Ultimately,
“in the national security context,” a federal agency’s “arguments need only be both ‘plausible’
and ‘logical’ to justify the invocation of a FOIA exemption.” Am. C.L. Union v. U.S. Dep’t of
Def., 628 F.3d 612, 624 (D.C. Cir. 2011). “[S]ummary judgment is warranted on the basis of
agency affidavits when the affidavits describe ‘the justifications for nondisclosure with
reasonably specific detail . . . and are not controverted by either contrary evidence in the record
nor by evidence of agency bad faith.’” Wolf v. Cent. Intel. Agency, 473 F.3d 370, 374 (D.C. Cir.
2007) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 2007)).
6
IV. ANALYSIS
The Court evaluates the FBI’s application of each FOIA exemption to the relevant
records. The Project contends that the FBI failed to carry its burden to satisfy Exemption 3,
7(D), or 7(E), and that the Court should order the FBI to release the withheld records. Having
reviewed the FBI’s declarations and the redacted versions of the records themselves, the Court
concludes that the agency properly applied Exemptions 3 and 7(E) to protect intelligence sources
and methods, as well as law enforcement techniques and procedures. In addition, the agency
carried its burden to show that it applied Exemption 7(D) to protect the identity of a confidential
source. As the DOJ emphasizes, the Project attacks the sufficiency of the FBI’s declaration
rather than the propriety of any specific redactions within the records. The Court therefore
focuses its attention on the adequacy of the FBI’s explanations.
A. Application of Exemption 3
FOIA Exemption 3 protects material “specifically exempted from disclosure by statute,”
provided that the statute “requires that the matters be withheld from the public in such a manner
as to leave no discretion on the issue,” or “establishes particular criteria for withholding or refers
to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). When evaluating a claim
under Exemption 3, courts must determine whether the statute identified by the agency qualifies
as an exemption statute and, subsequently, whether the material falls within the scope of the
statute. Cent. Intel. Agency v. Sims, 471 U.S. 159, 167–68 (1985); Fitzgibbon v. Cent. Intel.
Agency, 911 F.2d 755, 761 (D.C. Cir. 1990).
The FBI states that it withheld portions of the requested records because they fall within
§ 102A(i)(1) of the National Security Act of 1947. Seidel Decl. ¶ 13. The statute mandates that
“[t]he Director of National Intelligence shall protect, and shall establish and enforce policies to
7
protect, intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 3024(i)(1).
The parties do “not dispute that this statute is a withholding statute under Exemption 3.” Pl.’s
Opp’n Mot. Summ. J. at 5 (“Pl.’s Opp’n”), ECF No. 33-1; see also Sims, 471 U.S. at 167.
Rather, the Project argues that the FBI has “failed to ‘demonstrate [Exemption 3’s] applicability
in a nonconclusory and detailed fashion.’” Pl.’s Opp’n at 5 (quoting Shapiro v. U.S. Dep’t of
Just., 239 F. Supp. 3d 100, 123 (D.D.C. 2017)). As such, the Project does not argue that the
records fall outside the scope of § 3024(i)(1), but rather that the agency has not provided the
Court with a sufficient explanation to justify invoking Exemption 3, and that the Court should
therefore order the FBI to release the unredacted records. Id. at 5–7. The Court finds the FBI’s
justifications sufficient.
The agency explains that “intelligence sources and methods would be revealed if any of
the withheld information is disclosed to Plaintiffs” and that the agency “is prohibited from
disclosing such information.” Seidel Decl. ¶ 15. The fully and partially redacted pages of the
Intelligence Program Policy Guide contain information which, “if released, would compromise
the ability of the intelligence community to carry out its mission because it would disclose how
and when the FBI uses certain intelligence methods.” Id. ¶ 16. “The Guide directs FBI
employees how to ‘put together’ pieces of intelligence from various investigations to identify
trends across the United States.” Id. ¶ 30. These “[a]gency [declarations] enjoy ‘a presumption
of good faith [that] cannot be rebutted by purely speculative claims’ of agency malfeasance.”
Schaerr v. U.S. Dep’t of Just., 69 F.4th 924, 930 (D.C. Cir. 2023) (quoting In re Clinton, 973
F.3d 106, 113 (D.C. Cir. 2020)).
The Guide itself supports the FBI’s explanation: the document details the FBI’s
intelligence apparatus, including the roles of various officials, production and dissemination of
8
intelligence reports, case management, and staff assignment. See generally Ex. A to Lynch Decl.
at 4–86, ECF No. 35-1. Pages withheld in full describe the duties of intelligence analysts; the
FBI’s processes for threat, domain, and targeting analysis; and collection management. See Ex.
C to Seidel Decl. (listing pages withheld in full); Ex. A to Lynch Decl. at 8–10 (Guide table of
contents). Partial redactions cover, for instance, the “Processes and Procedures” of the FBI’s
“intelligence cycle,” id. at 30, issues related to “Intelligence Support for Special Events and
Critical Incidents,” id. at 61, and the duties of Confidential Human Source Coordinators, id. at
27–28. The content of sections surrounding the redacted material supports the notion that the
redacted text explains portions of the agency’s intelligence program. The FBI’s explanation is
sufficient to demonstrate that the Intelligence Program Policy Guide falls within the scope of
§ 3024(i)(1), and the agency therefore properly redacted information in the record to protect
intelligence sources and methods from unauthorized disclosure.
The FBI similarly carries its burden regarding the 4-page email, “which contain[s]
briefing reports from multiple divisions regarding national security investigations, policies and
practices, which, through discussion of information gathered, would reveal sources and
techniques the FBI uses to gather information and intelligence in national security
investigations.” Seidel Decl. ¶ 16. Releasing the unredacted email “would provide criminal
elements, terrorists and foreign adversaries a preview of how the FBI will respond to similar
investigative situations, allowing them to preemptively deploy countermeasures to disrupt FBI
investigative efforts of their own, unrelated activities.” Id. ¶ 27. The redacted email includes
daily updates from various Counterterrorism Division offices regarding ongoing operations,
including potential terrorism charging decisions. See Ex. B to Lynch Decl. at 88–91. Even
without “deference to the executive in the context of FOIA claims which implicate national
9
security,” Ctr. for Nat. Sec. Stud., 331 F.3d at 927, the FBI carries its burden to demonstrate that
the email falls within § 3024(i)(1) as revealing intelligence sources and methods. Courts in this
district have found that agencies carry their burdens when providing similar levels of detail
describing records withheld under Exemption 3. See, e.g., Whalen v. U.S. Marine Corps, 407 F.
Supp. 2d 54, 58 (D.D.C. 2005); Shapiro v. Dep’t of Just., No. 12-cv-313, 2020 WL 3615511, at
*22 (D.D.C. July 2, 2020). The FBI’s showing additionally exceeds the “[b]arren assertions”
found insufficient in other cases. Pl.’s Opp’n at 5 (quoting Founding Church of Scientology of
Wash., D. C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 831 (D.C. Cir. 1979)).
The Project provides nothing to “rebut[]” the FBI’s declaration and the inferences
available from the redacted documents the agency provided. Schaerr, 69 F.4th at 930. The
Project nonetheless argues that the FBI should provide a more detailed explanation so that it can
meaningfully challenge the agency’s reasoning for withholding the records. Pl.’s Reply in Supp.
of Cross-Mot. for Summ. J., ECF No. 37, at 3. Yet the Project points to a single paragraph of
Mr. Seidel’s declaration to argue that the FBI’s justification is too shallow. Id. at 2, 5 (citing
only Seidel Decl. ¶ 16); Pl.’s Opp’n at 6 (same). The Project largely ignores the information
provided in the full scope of the 18-page declaration. See Seidel Decl. ¶¶ 18–19, 23, 27–31. In
addition, the Project declines to engage with the redacted documents, which the agency has
provided, see Ex. A to Lynch Decl., or to explain to the Court why any specific redactions are
inappropriate in the face of the agency’s explanations. The Project has the information it would
need to challenge the FBI’s use of Exemption 3. The FBI made proper use of the exemption in
this case.
10
B. Application of Exemption 7(E)
Exemption 7(E) permits withholding of
records or information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or information . . . would
disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to risk circumvention
of the law.
5 U.S.C. § 552(b)(7)(E). To properly withhold records under the “techniques and procedures”
prong of 7(E), the agency must “demonstrate that its withholdings meet three basic
requirements.” Prop. of the People, Inc. v. Dep’t of Just., 539 F. Supp. 3d 16, 28 (D.D.C. 2021).
“First, it must show that the documents were in fact ‘compiled for law enforcement purposes’
and not for some other reason. Id. (quoting 5 U.S.C. § 552(b)(7)(E)). “To show that the
disputed documents were ‘compiled for law enforcement purposes,’ the FBI need only ‘establish
a rational nexus between the investigation and one of the agency’s law enforcement duties and a
connection between an individual or incident and a possible security risk or violation of federal
law.’” Blackwell v. Fed. Bureau of Investigation, 646 F.3d 37, 40 (D.C. Cir. 2011) (quoting
Campbell v. Dep’t of Just., 164 F.3d 20, 32 (D.C. Cir. 1998)). “Second, the Government must
establish that the records contain law-enforcement techniques and procedures that are ‘generally
unknown to the public.’” Prop. of the People, 539 F. Supp. 3d at 28.
“Finally, it must demonstrate that disclosure ‘could reasonably be expected to risk
circumvention of the law.’” Id.; see also 5 U.S.C. § 552(b)(7)(E)). The standard looks “not just
for circumvention of the law, but for a risk of circumvention.” Mayer Brown LLP v. Internal
Revenue Serv., 562 F.3d 1190, 1194 (D.C. Cir. 2009). Exemption 7(E) requires only that the
agency “demonstrate[] logically how the release of the [requested] information might create a
risk of circumvention of the law.” Id. “Exemption 7(E) sets a relatively low bar for the agency
11
to justify withholding.” Blackwell, 646 F.3d at 42. “Because the FBI specializes in law
enforcement, its decision to invoke [E]xemption 7 is entitled to deference.” Campbell, 164 F.3d
at 32 (citing Pratt v. Webster, 673 F.2d 408, 419 (D.C. Cir. 1982)).
The Project challenges the FBI’s application of Exemption 7 on four bases. First, the
Project asserts that the FBI failed to demonstrate that the withheld records were compiled for law
enforcement purposes. See Pl.’s Opp’n at 7–10. Second, the Project argues that the FBI does
not show that its redactions protect law enforcement techniques or procedures. See id. at 14–17.
Third, the Project contends that the FBI has not substantiated its fear that release of the
information would lead to circumvention. See id. at 17–18. Fourth, the Project states that the
FBI has not sufficiently demonstrated “foreseeable harm.” Id. at 18. Each of these arguments
fails for the reasons discussed below.
a. Compilation for Law Enforcement Purposes
The Project asserts that the FBI has “failed to carry its burden of demonstrating that the
records were created for a law enforcement purpose.” Pl.’s Opp’n at 7. The agency responds
that both Mr. Seidel’s declaration and the records themselves demonstrate that the FBI created
the records for law enforcement purposes. See Def.’s Opp’n Pl.’s Cross-Mot. Summ. J. (“Def.’s
Opp’n”), ECF No. 35, at 5–6. The Court agrees that the FBI created the records here—an email
tracking terrorism investigations and an Intelligence Program Policy Guide—for law
enforcement purposes.
The Seidel Declaration explains that the FBI created the guide as part of “the
development of policy within the FBI’s Directorate of Intelligence.” Seidel Decl. ¶ 19. The FBI
explains at length how the agency uses the Guide, including its “specific roadmaps” for
techniques “used to analyze information obtained from national security investigations.” Id.
12
¶ 30. The Guide “is used by Intelligence Analysts and FBI Special Agents to draft Intelligence
Products that identify specific trends in their areas of operation, and across the United States.”
Id. Review of the document itself supports the notion that it was created for law enforcement
purposes. The record details “Roles and Responsibilities” of FBI intelligence officials, as well as
processes and procedures for intelligence collection, analysis, management, and recordkeeping.
Ex. A to Lynch Decl. at 8–14. The guide declares that its purpose “is to detail the roles and
procedures in carrying out the [FBI’s] Intelligence Program.” Id. at 15. The FBI’s explanation
of the document, as well as the document itself, confirm that it was created to further the FBI’s
law enforcement mission.
The correspondence at issue also represents “an email among personnel in one of the
FBI’s Counterterrorism Law Units tracking counterterrorism-related investigations.” Seidel
Decl. ¶ 19. It is an “internal email between FBI employees . . . providing daily ‘close-out’
updates on specific investigative matters, with specific analytical techniques discussed in three
blocks on [one page] and two blocks on [another].” Id. ¶ 30. Again, the record itself supports
this description. The email includes updates from various elements of the FBI Counterterrorism
Division, including apparent references to individuals under investigation. Ex. B to Lynch Decl.
at 88–89. The agency’s explanation, along with the record itself, sufficiently demonstrates that
the email was created for law enforcement purposes.
The Project contends that the FBI must demonstrate that each record was created in
relation to a specific investigation or enforcement proceeding, and that the agency has not done
so here. See Pl.’s Opp’n at 7–8 (discussing Bartko v. U.S. Dep’t of Just., 898 F.3d 51, 64 (D.C.
Cir. 2018)). Yet under Exemption 7(E), “an agency may seek to block the disclosure of internal
agency materials relating to guidelines, techniques, sources, and procedures for law enforcement
13
investigations and prosecutions, even when the materials have not been compiled in the course of
a specific investigation.” Tax Analysts v. Internal Revenue Serv., 294 F.3d 71, 79 (D.C. Cir.
2002); see also Morley v. Cent. Intel. Agency, 508 F.3d 1108, 1129 (D.C. Cir. 2007) (upholding
withholding of CIA security clearance practices). The Project’s position would mean that
agencies could never legally withhold broad policy documents governing investigations and
procedures, as those documents generally are not connected to individual investigations. In
addition, adopting the Project’s rule would mean that federal agencies could withhold documents
revealing application of techniques and procedures to individual cases, but that agencies could
not withhold the guidance documents fully detailing those practices. That would turn Exemption
7(E) on its head.
b. Protection of Law Enforcement Techniques and Procedures
Relatedly, the Project argues that the FBI has not demonstrated that the redactions protect
law enforcement techniques or procedures. See Pl.’s Opp’n at 14–17. The DOJ again responds
that the declaration and the documents themselves show that the redactions protect law
enforcement techniques or procedures. See Def.’s Opp’n at 7–10. The DOJ emphasizes that the
Project does not challenge any specific redactions, but rather “attacks the level of detail in the
Seidel Declaration.” Id. at 8.
The Intelligence Program Policy Guide indisputably contains law enforcement techniques
and procedures. The FBI explains that the guide provides “specific roadmaps” and “details
about how intelligence is to be used in investigations.” Seidel Decl. ¶ 30. Redacted portions of
the Guide include, for instance, the specific duties of various FBI officials related to intelligence
activities, see Ex. A to Lynch Decl. at 16–28, portions of the “intelligence cycle,” id. at 31, and
“collection requirements,” id. at 32. The record includes descriptions of specific reports to be
14
produced, id. at 36–37, coordination, id. at 41, assignment of personnel, id. at 60, and file
management, id. at 68. These topics plainly constitute the FBI’s law enforcement techniques and
procedures.
The FBI similarly demonstrates that the redacted email provides information on law
enforcement techniques and procedures. As the agency explains, revealing “non-public
investigative focuses of the FBI . . . would provide criminal elements, terrorists and foreign
adversaries a preview of how the FBI will respond to similar investigative situations, allowing
them to preemptively deploy countermeasures to disrupt FBI investigative efforts of their own,
unrelated activities.” Seidel Decl. ¶ 27. “[R]evealing the FBI’s points of focus in the particular
investigations would necessarily reveal its techniques and procedures.” Reps. Comm. for
Freedom of Press v. Fed. Bureau of Investigation, No. 17-cv-1701, 2022 WL 13840088, at *8
(D.D.C. Oct. 21, 2022). “Indeed, courts in this District routinely allow the FBI to protect this
kind of information.” Id. (collecting cases).
The Project contends that the FBI must provide more. See Pl.’s Opp’n at 14. Yet with
the FBI’s explanations and the redacted documents themselves, “the Court can deduce something
of the nature of the techniques in question.” New Orleans Workers’ Ctr. for Racial Just. v. U.S.
Immigr. & Customs Enf’t, 373 F. Supp. 3d 16, 65 (D.D.C. 2019). The Government has provided
sufficient explanation of the techniques and procedures at stake, and the Court finds those
explanations logical, plausible, and supported by the record.
c. Risk of Circumvention
The Project contends that the FBI has failed to carry its burden to show that release of the
two records here would lead to circumvention of the law, as the FBI has submitted an
“inadequate affidavit.” Pl.’s Opp’n at 17. The DOJ, in contrast, asserts that the subjects of the
15
records here fall “within the core of Exemption 7(E),” Def.’s Mot. Summ. J. at 12, and that Mr.
Seidel’s declaration explains at length how the material could reasonably be expected to risk
circumvention of the law. Def.’s Opp’n at 11. The Court agrees with the DOJ.
First, “Exemption 7(E) sets a relatively low bar for the agency to justify withholding.”
Blackwell, 646 F.3d at 42. “Exemption 7(E) clearly protects information that would train
potential violators to evade the law or instruct them how to break the law.” Mayer Brown, 562
F.3d at 1193. The exemption “goes further,” however, by “exempt[ing] from disclosure
information that could increase the risks that a law will be violated or that past violators will
escape legal consequences.” Id. The FBI need only “demonstrate[ ] logically how the release of
[the requested] information might create a risk of circumvention of the law.” Id. at 1194.
The FBI explains that the Intelligence Program Policy Guide “directs FBI employees how
to ‘put together’ pieces of intelligence from various investigations to identify trends across the
United States.” Seidel Decl. ¶ 30. “Disclosure of this information,” the declaration continues,
“would provide valuable insight into individuals of investigative interest and allow them to
thwart these techniques, and would provide valuable insight into how the FBI uses intelligence.”
Id. Revealing the unredacted Guide “would enable criminals and foreign adversaries targeted by
these techniques to predict and circumvent their use by the FBI.” Id. As previously noted, the
Guide instructs individual FBI officials on their roles in creation and analysis of intelligence,
tradecraft standards, coordination across offices, assignment of personnel, and file management,
among other topics. See generally Ex. A to Lynch Decl. at 4–86. These explanations
sufficiently demonstrate reasonable expectation of a risk of circumvention and mirror those the
D.C. Circuit has previously found sufficient to justify withholding of records under Exemption
7(E). See, e.g., Blackwell, 646 F.3d at 42 (discussing reasoning for withholding “details about
16
procedures used during the forensic examination of a computer”); Morley, 508 F.3d at 1128–29
(reciting reasoning for withholding CIA security clearance techniques); Pub. Emps. for Env’t
Resp. v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mex., 740 F.3d 195, 205 (D.C. Cir.
2014) (discussing withholding of “guidelines that inform emergency personnel how to manage a
dam failure”).
The FBI’s explanation for withholding the coordination email additionally passes muster.
The declaration notes that not only would release of the unredacted email “alert” the
“investigative targets . . . to the FBI’s interest in their activities,” but it would also “provide
criminal elements, terrorists and foreign adversaries a preview of how the FBI will respond to
similar investigative situations, allowing them to preemptively deploy countermeasures to
disrupt FBI investigative efforts of their own, unrelated activities.” Seidel Decl. ¶ 27. The email
additionally contains discussion of “specific analytical techniques,” id. ¶ 13, which raise similar
concerns to the Guide. As noted above, courts have repeatedly concluded that a law enforcement
agency’s investigative focus may properly be withheld under Exemption 7(E). See, e.g., Poitras
v. Dep’t of Homeland Sec., 303 F. Supp. 3d 136, 159 (D.D.C. 2018); Amuso v. U.S. Dep’t of
Just., 600 F. Supp. 2d 78, 101 (D.D.C. 2009).
The FBI’s explanations “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.
The FBI has thus satisfied the “relatively low bar for the agency to justify withholding” of
portions of the Guide and email under Exemption 7(E). Blackwell, 646 F.3d at 42.
d. Foreseeable Harm
The Project argues that the FBI’s explanation of the foreseeable harm attending release of
the unredacted records is insufficient because it is “boilerplate” and “wholly generalized and
17
conclusory.” Pl.’s Opp’n at 18 (quoting Reps. Comm., 3 F.4th at 370). The DOJ responds that
the FBI made a particularized showing with respect to foreseeable harm under Exemption 7(E).
Def.’s Opp’n at 10. The Court finds that the FBI has carried its burden to demonstrate
foreseeable harm to the interests protected by Exemption 7(E).
The agency “bears the burden of showing that it ‘reasonably foresees that disclosure
would harm an interest protected by an exemption’ or that ‘disclosure is prohibited by law.’”
Leopold, 94 F.4th at 37 (quoting 5 U.S.C. § 552(a)(8)(A)(i)). “[W]hether a requested record falls
within an exemption and whether the disclosure of that record would foreseeably harm an
interest protected by the exemption are distinct, consecutive inquiries.” Id. “Agencies,
therefore, must provide ‘a focused and concrete demonstration of why disclosure of the
particular type of material at issue will . . . actually impede’ the interests protected by a FOIA
exemption.” Id. (quoting Reps. Comm., 3 F.4th at 370).
Although evaluating the reasonable foreseeability of harm to an interest protected by an
exemption “impose[s] an independent and meaningful burden on agencies,” Reps. Comm., 3
F.4th at 369, meeting Exemption 7(E)’s requirement that release “might create a risk of
circumvention of the law,” Mayer Brown, 562 F.3d at 1194, provides clues as to the likelihood of
harm. If release of the information “increase[s] the risks that a law will be violated or that past
violators will escape legal consequences,” id. at 1193, then it stands to reason that releasing the
information would “actually impede” the interests protected by Exemption 7(E).
Indeed, the Court looks to much of the same indicia in this analysis as it did when
assessing the risk of circumvention. The FBI has explained how releasing the Guide would
empower “criminals and foreign adversaries targeted by these techniques to predict and
circumvent their use by the FBI.” Seidel Decl. ¶ 30. Releasing the email would also “provide
18
criminal elements, terrorists and foreign adversaries a preview of how the FBI will respond to
similar investigative situations, allowing them to preemptively deploy countermeasures to
disrupt FBI investigative efforts of their own, unrelated activities.” Id. ¶ 27. The Court views
the FBI’s justifications with due “defer[ence] to executive affidavits predicting harm to the
national security.” Ctr. for Nat. Sec. Stud., 331 F.3d at 927. Based on these explanations and a
review of the redacted documents, the Court finds that the FBI has provided “a focused and
concrete demonstration of why disclosure of” the Guide and email “will, in the specific context
of the agency action at issue, actually impede the interests protected by a FOIA exemption.”
Leopold, 94 F.4th at 37.
C. Application of Exemption 7(D)
FOIA Exemption 7(D) provides that an agency need not disclose information that “could
reasonably be expected to disclose the identity of a confidential source, including a State, local,
or foreign agency.” 5 U.S.C. § 552(b)(7)(D). “[A] source is confidential within the meaning of
Exemption 7(D) if the source provided information under an express assurance of confidentiality
or in circumstances from which such an assurance could be reasonably inferred.” Boyd v. Crim.
Div. of U.S. Dep’t of Just., 475 F.3d 381, 389 (D.C. Cir. 2007) (quoting U.S. Dep’t of Just. v.
Landano, 508 U.S. 165, 172 (1993)). “Under Exemption 7(D), the question is not whether the
requested document is of the type that the agency usually treats as confidential, but whether the
particular source spoke with an understanding that the communication would remain
confidential.” Landano, 508 U.S. at 172. “Exemption 7(D) requires no balancing of public and
private interests.” Roth v. U.S. Dep’t of Just., 642 F.3d 1161, 1184 (D.C. Cir. 2011). Some
courts have described 7(D) as “the strongest of all of FOIA’s law enforcement exemptions.”
Bullock v. Fed. Bureau of Investigation, 577 F. Supp. 2d 75, 79 (D.D.C. 2008).
19
Courts examine application of Exemption 7(D) on a case-by-case basis. Landano, 508
U.S. at 179-180. “The agency invoking Exemption 7(D) bears the burden of proving that it
applies.” Roth, 642 F.3d at 1184. An agency may carry its burden through declarations alone.
See Labow v. U.S. Dep’t of Just., 831 F.3d 523, 531 (D.C. Cir. 2016). In camera review may be
necessary, however, when the agency cannot provide a full, public explanation without “giving
away the information it is trying to withhold.” Roth, 642 F.3d at 1185.
The Court finds that the FBI’s explanation for withholding the name of its foreign source
is both “logical” and “plausible.” Am. C.L. Union, 628 F.3d at 624. The FBI has carried its
burden here to demonstrate both that FOIA Exemption 7(D) applies and that disclosure would
harm an interest protected by the exemption. The FBI explains that “[i]n this case, the FBI has
previously received an express request from a foreign government to withhold information
pertaining to an ongoing investigation and possible pending charges in a case shared by the
United States and that foreign law enforcement agency.” Seidel Decl. ¶ 23. The FBI added that
“the withheld information would identify the country that has been assured its identity would be
kept confidential” and that “[d]isclosure could reveal both countries’ interest and position in the
investigation.” Id. Because the FBI asserts that it has an express confidentiality agreement with
a source, the Court need not consider Roth’s four-factor test governing implied confidentiality
agreements. See Roth, 642 F.3d at 1184; Labow, 831 F.3d at 531.
The record itself further supports the FBI’s assertion that the information contains the
identity of a confidential source, namely a “foreign agency.” 5 U.S.C. § 552(b)(7)(D). The
email details operations of the International Terrorism Operations Section (“ITOS”). See In re
Sept. 11 Litig., 621 F. Supp. 2d 131, 162 (S.D.N.Y. 2009) (discussing ITOS). The language
states that the Section was “[w]aiting for [redacted] to confirm when/whether they are also
20
charging [an individual].” Ex. B to Lynch Decl. at 88. The context indicates that the FBI
communicated with a foreign government regarding a pending terrorism prosecution. It would
not be unusual for this information to be shared in confidence. 2
The Court additionally finds that the FBI showed that disclosure would foreseeably harm
an interest protected by Exemption 7(D). The FBI explained that “[b]ecause of the sensitive
nature of the information,” along with “the FBI’s express assurance to keep this investigation
confidential, this foreign government has a reasonable expectation that its identity and the
information it provided to the FBI will remain confidential.” Seidel Decl. ¶ 23. Revealing the
information “could be detrimental to the necessary cooperation of the foreign government
agencies with the FBI.” Id. In addition, revealing the identity of the foreign agency source
“would seriously impair the FBI’s effectiveness in assisting with or participating in future
investigations with foreign government agencies.” Id. The agency’s explanation represents “a
focused and concrete demonstration of why disclosure of” the confidential foreign agency source
“will . . . actually impede the interests protected by” Exemption 7(D). Leopold, 94 F.4th at 37.
The agency’s explanation of its basis for invoking Exemption 7(D) is both “logical” and
“plausible.” Am. C.L. Union, 628 F.3d at 624. The FBI asserts that it acquired the information
from a foreign agency under the condition of confidentiality, Seidel Decl. ¶ 23, and the record
lends credibility to that contention. In addition, “the [C]ourt owes substantial weight to detailed
agency explanations in the national security context.” King v. U.S. Dep’t of Just., 830 F.2d 210,
217 (D.C. Cir. 1987).
2
In addition, federal agencies regularly classify “foreign government information,”
further supporting the notion that a foreign agency would expect its discussion of charges in a
terrorism case to remain confidential. Exec. Order No. 13,526, § 1.4(b), 75 Fed. Reg. 707, 709
(Dec. 29, 2009).
21
The Project nonetheless contends that “the Seidel Declaration mirrors the inadequate
declaration rejected in Campbell.” Pl.’s Opp’n at 12. In Campbell, the D.C. Circuit observed
that to avail itself of Exemption 7(D), “the FBI must present ‘probative evidence that the source
did in fact receive an express grant of confidentiality.’” 164 F.3d at 34. There, the court took
issue with the basis for the FBI official’s knowledge of the confidentiality agreement, noting that
the “declaration simply asserts that various sources received express assurances of
confidentiality without providing any basis for the declarant’s knowledge of this alleged fact.”
Id. at 34–35. In addition, the “particular events” at issue “occurred more than 30 years” prior,
such that the court deemed more information necessary to establish the credibility of the
government’s position. Id. at 35.
The concerns the D.C. Circuit expressed in Campbell are not present here. Mr. Seidel’s
declaration is based upon “[his] personal knowledge, upon information provided to [him] in [his]
official capacity, and upon conclusions and determinations reached and made in accordance
therewith.” Seidel Decl. ¶ 2. The email in question was sent in October 2020, during Mr.
Seidel’s tenure as Section Chief of the Record/Information Dissemination Section. Id. ¶ 1. In
addition, it is reasonable to believe that relevant institutional knowledge remained within the FBI
to support the agency’s understanding that a confidential agreement existed or continues to exist
with the foreign agency in question. The FBI’s provision of the contested documents, which
allows for this Court’s direct review, lends further credibility to the government’s assertions in a
manner not present in Campbell. See 164 F.3d at 35 (noting the court’s inability to meaningfully
review the records).
The cases to which the Project points do not counsel otherwise. In Lazaridis v. U.S.
Dep’t of Just., 766 F. Supp. 2d 134 (D.D.C. 2011), the court found the FBI’s invocation of
22
Exemption 7(D) unsubstantiated because the declarant did “not claim to have any personal
knowledge of the [confidentiality] agreement” and “presented no probative evidence of such an
agreement.” Id. at 148. The agency there based its application of 7(D) on “an implied grant of
confidentiality.” Id. That is inapposite here, where the FBI cites an express confidentiality
agreement, the declarant states he has personal knowledge of the agreement, the FBI provides
additional details about the joint terrorism investigation, and the records themselves support the
confidential nature of the FBI’s relationship with the foreign agency. Similarly, a “notation[] on
the face of a withheld document” may indicate that information was provided in confidence,
Shapiro, 2020 WL 3615511, at *33 (quoting Campbell, 164 F.3d at 34), but the Project cites no
authority indicating that notations are necessary. Additionally, where the agency provides a
more detailed explanation of the nature of the “cooperative investigation,” as the FBI has done
here, courts are more likely to find the declaration sufficient. Prop. of the People, Inc., 539 F.
Supp. 3d at 27.
V. CONCLUSION
For the foregoing reasons, DOJ’s motion for summary judgment (ECF No. 31) is
GRANTED, and the Project’s cross-motion for summary judgment (ECF No. 34) is DENIED.
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: June 6, 2024 RUDOLPH CONTRERAS
United States District Judge
23