Court of Appeals Decisions
Blackwell v. FBI, No. 10-5072, 2011 WL 2600831 (D.C. Cir. July 1, 2011) (Kavanaugh, J.). Holding: Affirming the district court's decision that the FBI properly invoked Exemptions 7(C) and 7(E) and conducted an adequate search. The D.C. Circuit holds that the FBI properly asserted Exemption 7(E) to withhold "'details about procedures used during the forensic examination of a computer'" and "'methods of data collection, organization and presentation contained in ChoicePoint reports.'" With regard to the forensic procedures, the D.C. Circuit finds that, first, they "are undoubtably 'techniques' or 'procedures' used for 'law enforcement investigations.'" Second, the D.C. Circuit concludes that the FBI's explanations that the release of the information "would risk circumvention of the law by individuals who seek to utilize computers in violations of laws" and also risk "'exposing computer forensic vulnerabilities to potential criminals'" "satisfies the Exemption 7(E) standard." As to the ChoicePoint reports, the D.C. Circuit finds persuasive the FBI's assertion that "'the manner in which the data is searched, organized and reported to the FBI is an internal technique, not known to the public'" as well as it explanation as to "how the data could help criminals circumvent the law," concluding that these descriptions "suffice[ ] here to justify invocation of Exemption 7(E)."
Jordan v. DOJ, No. 10-1469, 2011 WL 6739410 (10th Cir. Dec. 23, 2011) (Kelly, J.). Holding: Affirming the decision of the district court granting summary judgment to BOP based on the propriety of its Exemptions 7(E) and 7(F) withholdings; and, after considering application of Exemption 7(E) for material formerly withheld pursuant to High 2 at the district court level, concluding that Exemption 7(E) covers the material at issue. The Tenth Circuit affirms the district court's determination that BOP properly withheld plaintiff's mail collected by its Special Investigative Supervisor's office pursuant to Exemption 7(E). The Tenth Circuit notes that plaintiff has "forfeited his new theories on this issue" where he failed to raise his arguments regarding the propriety of the Exemption 7(E) withholdings in the district court.
The Tenth Circuit also finds that BOP may now rely on Exemption 7(E) to redact a portion of plaintiff's psychological report that was formerly withheld under Exemption 2. The Tenth Circuit observes that "[d]efendants concede, as they must, that in light of [the Supreme Court's decision in] Milner [v. U.S. Department of the Navy], High 2 cannot justify withholding the redacted paragraph of [plaintiff's] psychological record because the redaction does not concern conditions of employment in a federal agency." However, the Tenth Circuit finds that because "Exemption 7(E) is essentially the same as former High 2" with the added Exemption 7 threshold requirement and "defendants argued for both High 2 and the 'per se rule' in the district court, they effectively presented all the elements of Exemption 7E." Accordingly, the Tenth Circuit finds that plaintiff "had ample opportunity in the district court and again on appeal to address the circumvention aspect of High 2 and the 'law enforcement purposes' requirement of Exemption 7" and therefore concludes that BOP has not waived or forfeited its ability to assert Exemption 7(E) for this material. Moreover, the Tenth Circuit finds that it is within [the court's] power to consider Exemption 7E on appeal in lieu of the now-defunct 'High 2' exemption." Based on the record before it, the Tenth Circuit finds that "the redacted portion of [plaintiff's] psychological records falls within [the] compass" of Exemption 7(E) "given that the redacted portion 'advised all staff regarding appropriate actions to take with regard to [plaintiff] . . ., a dangerous prisoner with a history of threatening staff with bodily harm.'" As such, the Tenth Circuit determines that the release of this information "would disclose guidelines for a potential law enforcement investigation by giving information BOP staff would be likely to use in investigating [plaintiff's] conduct while incarcerated" and also finds that "knowing BOP strategy could make it easier for [plaintiff] to subvert it."
Allard K. Lowenstein Int'l Hum. Rts. Project v. DHS, No. 09-2225, 2010 WL 4704322 (2d Cir. Nov. 22, 2010) (Rakoff, J.). The Second Circuit affirms that the district court ruling that the redacted portions of the requested memorandum were properly withheld pursuant to Exemption 7(E). As an initial matter, the Second Circuit finds that despite plaintiff's arguments to the contrary "[t]he sentence structure of Exemption (b)(7)(E) indicates that the qualifying phrase ('if such disclosure could reasonably be expected to risk circumvention of the law') modifies only 'guidelines' and not 'techniques and procedures'" and that the legislative history of the exemption likewise supports this interpretation. Additionally, the Second Circuit rejects plaintiff's argument that "the redacted information constitutes 'guidelines' information, instead of information about 'techniques and procedures.'" The Second Circuit found that the term "guidelines" generally refers in the context of Exemption 7(E) to resource allocation," while techniques and procedures "refers to how law enforcement officials go about investigating a crime." Based on its in camera review of the memo, the Second Circuit finds that "the redacted portions constitute 'techniques and procedures' for law enforcement investigation."
Pototsky v. DHS, No. 09-15247, 2010 WL 737751 (9th Cir. Mar. 3, 2010) (unpublished disposition). The court holds that the district court "did not clearly err" in concluding that Exemptions 7(C) and 7(E) apply, because "[t]he redacted material 'could reasonably be expected to constitute an unwarranted invasion of personal privacy' and 'would disclose techniques and procedures for law enforcement investigations or prosecutions.'"
District Court DecisionsConcepcion v. U.S. Customs and Border Prot., No. 10-0599, 2012 WL 6019299 (D.D.C. Dec. 4, 2012) (Jackson, J.). Holding: Granting Customs and Border Protection's motion for summary judgment. Plaintiff did not challenge Customs and Border Protection's redaction of computer code information, and the court treats Customs and Border Protection's arguments with regard to Exemption 7(E) as conceded.
Strunk v. U.S. Dep't of State, No. 08-2234, 2012 WL 5875653 (D.D.C. Nov. 21, 2012) (Leon, J.). Holding: Granting State Department's renewed motion for summary judgment. The court holds that "[a]lthough the computer transaction and function codes [of the TECS database] are not themselves 'techniques and procedures for law enforcement investigations or prosecutions' entitled to categorical protection under Exemption 7(E), the CBP's declarant adequately demonstrates that release of the codes, as well as the information in the RSLT column, 'would disclose guidelines for law enforcement investigations or prosecutions[, and that] such disclosure could reasonably be expected to risk circumvention of the law.'"
CBP explained that TECS is "'an overarching law enforcement information, collection, analysis, and sharing environment that securely links telecommunications devices and personal computers to a central system and database.'" CBP's declarant explained that release of computer codes associated with the database "'could reveal the precise procedures for retrieving records from a law enforcement database containing information related to [CBP's] law enforcement mission' and thus 'expose the system to vulnerabilities and compromise the … data compiled for law enforcement purposes and other … missions.'" In addition, the court concludes that information from the "RSLT column," which is the column "that reflects the results of specific law enforcement database queries" was also properly withheld under Exemption 7(E). The court accepts CBP's argument that "'individuals who knew the meaning of the codes contained in the 'RSLT' column would gain access to CBP law enforcement techniques and procedures that would permit them to alter their patterns of conduct, adopt new methods of operation, relocate, change associations, and effectuate other countermeasures, thus corrupting the integrity of the ongoing investigations.'" Segregability: The court finds that all reasonably segregable information has been released. CBP's declarant explained that "she 'conducted a line-by-line review of each record identified as responsive.'" "The CBP's declarations, coupled with a detailed Vaughn index, satisfy the Court that all reasonably segregable information has been disclosed to plaintiff."
ACLU of N.J. v. DOJ, No. 11-2553, 2012 WL 4660515 (D.N.J. Oct. 2, 2012) (Salas, J.). Holding: Granting defendants' motions for summary judgment; denying plaintiff's motions for summary judgment. Plaintiff does not contest applicability of this exemption to certain information and the court therefore grants defendants summary judgment as to those withholdings. With respect to the remaining issue, which is the releasibility of certain Domain Intelligence Operations Guide (DIOG) materials and a February 2009 Electronic Communication (EC), the court finds that with regard to the DIOG materials, "[w]hile the public may know that some of these techniques and procedures exist, it does not know the manner in which the FBI uses them." Absent evidence of bad faith, the court holds that the materials were properly withheld under Exemption 7(E). With regard to the EC, the defendant explains that the EC "would reveal 'operational direction and guidance on what criteria to look for in determining what constitutes a specific type of domestic terrorism group and evaluating that group.'" The court accepts defendant's explanation that "release of the redacted information would risk circumvention of the law because targets of investigations could alter their behavior to avoid detection and to exploit gaps in FBI intelligence."
ACLU of Mich. v. FBI, No. 11-13154, 2012 WL 4513626 (E.D. Mich. Sept. 30, 2012). Holding: Granting defendant's motion for summary judgment and denying plaintiff's motion. The court finds that the FBI properly invoked Exemption 7(E) to withhold certain Domestic Intelligence Operations Guide (DIOG) training materials. In doing so, the court finds that while a risk of circumvention of the law is required to protect guidelines for investigations, "[n]o such showing of harm is required for the withholding of law enforcement 'techniques or procedures.'" The court concludes that the FBI has properly identified techniques and procedures which "receive categorical protection from disclosure." Citing extensively to the FBI's declaration, the court determines that even those techniques and procedures that may be generally known to the public are protected because the FBI has shown that certain details are not. For example, as the FBI asserts, with regard to surveillance, monitoring, and mapping information, "the techniques' limitations, their planned expansion in future operations, the specifics of their capabilities, or the manner in which the FBI uses this information in its investigations," is not known. With regard to FBI work that is not complete, the public also does not know "'how the FBI deals with internal resource limitations'" or "'where information useful to potential lawbreakers is maintained.'" Likewise, while it is generally known that the FBI collects information, "the manner in which the FBI does so is not publicly known." Finally, "file numbers, identifying symbols, forms and database terms and definitions" are not public information and "could be used by those seeking to subvert the activities of the FBI."
The court also holds that the FBI properly withheld guidelines for investigations from the training materials. The court finds that revealing "specific scenarios in which particular activities or techniques are authorized," would allow an individual to "conform his behavior to non-detection." Revealing "the circumstances under which FBI personnel and confidential sources may or may not engage in undisclosed participation in the activities of third parties and the extent to which participation is permitted," would endanger agents and sources. Finally, releasing information concerning "approval limitations and technical or practical limitations on particular investigative techniques," would help "criminals and terrorists" circumvent the law.
Skinner v. DOJ, No. 09-0725, 2012 WL 4465788 (D.D.C. Sept. 28, 2012) (Friedman, J.). Holding: Granting defendant's second renewed motion for summary judgment. The court holds that "although the computer access codes are not themselves 'guidelines for law enforcement investigations or prosecutions' entitled to categorical protection under Exemption 7E, the declarant adequately demonstrates that release of the codes 'would disclose guidelines for law enforcement investigations or prosecutions[, and that] such disclosure could reasonably be expected to risk circumvention of the law." The court explains that the defendant has "describe[d] the TECS database in detail …[and] explain[ed] the link between disclosure of authorized users' access codes and the many ways individuals could exploit the information to circumvent the law or to corrupt the database itself."
Elec. Frontier Found. v. DOD, No. C 09-05460 SI, 2012 WL 4364532 (N.D. Cal. Sept. 24, 2012) (Illston, J.). Holding: Granting in part and denying in part defendants' motion for summary judgment; denying plantiff's motion for summary judgment. The court holds that Immigration and Customs Enforcement (ICE) and United States Secret Service (USSS) properly withheld information pursuant to Exemption 7E. The court finds that plaintiff has not demonstrated that "ICE's position – that detailed technical analyses of [ICE's] use of the internet have not been disclosed – is incorrect or otherwise without support." Likewise, plaintiff has not shown "how the publicly-known fact that ICE uses social networking sites for its gang investigations by itself means that the detailed instructions and guidance the agency internally uses for those activities are either well-known or can be fully anticipated by the public." USSS has similarly explained why "a list of search terms used to detect threats against Secret Service protectees" must be withheld because they are part of "techniques and methodologies used by the Secret Service that are not generally known and could circumvent their law enforcement functions."
The court decides that the FBI properly withheld documents that explain "guidelines for use of investigative techniques," "standards for requesting user information from online services" and "guidelines for use of online services in investigations," because they go to the "heart of how and when the FBI is using social networking sites for investigations, and, as such, the risk of circumvention from disclosure is readily apparent." However, the court directs the FBI to supplement its declaration "to provide adequate justifications for withholding information regarding 'techniques and procedures,' information regarding the agency's 'potential online focus,' unit titles and the FBI divisions and location of field offices and task forces."
ACLU v. DOJ, No. 09-0642, 2012 U.S. Dist. LEXIS 137204 (W.D. Wash. Sept. 21, 2012) (Lasnik, J.). Holding: Ordering the defendant to remove certain redactions and produce certain documents to plaintiff and finding that for the remaining redactions, no further disclosures are necessary. Information that is "not based on geographic area and does not reveal travel patterns or regional data related to law enforcement efforts" cannot be withheld under Exemption 7(E). The court finds that the defendant properly withheld information that "describes events, behaviors, and objects that should be considered when law enforcement officers are attempting to detect possible terrorist activity." The disclosure of this compiled information "would make it easier to adjust activities and belongings so that fewer indicators are triggered, thereby frustrating law enforcement efforts." However, when the information regarding behaviors and objects is "incomplete and very general" and "already known to the public through common sense or other avenues… disclosure cannot reasonably be expected to aid terrorist in their attempts to circumvent the law." Finally, while the disclosure of information "may…'warn terrorists from this location and/or who fit the described characteristics that they are under investigation,'" if there is "no indication that the redacted information 'discloses techniques and procedures for law enforcement investigations or prosecutions,'" Exemption 7(E) does not apply.
Vazquez v. DOJ, No. 10-39, 2012 WL 3655253 (D.D.C. Aug. 24, 2012) (Leon, J.). Holding: Granting defendants' motion for summary judgment on the basis that they properly invoked the Glomar response in conjunction with Exemption 7(E). The court concludes that "defendants have established the threshold requirement that the responsive records be compiled for law enforcement purposes and have shown that utilization of the NCIC database constitutes a 'procedure[ ] for law enforcement investigations' covered by exemption 7(E)." The court holds that defendants properly refused to confirm or deny the existence of NCIC transactions concerning plaintiff pursuant to Exemption 7(E). Prior to the Supreme Court's decision in Milner, the court held that DOJ properly asserted the Glomar response in conjunction with Exemption 2 for the material at issue, and now "finds no reason to depart from that earlier finding," "[s]ince exemption 7(E) is designed to prevent the same type of harm." The court concludes that "persons knowing that they are being investigated by a law enforcement entity, which the requested information would reveal, could reasonably be expected to use the information to circumvent the law. Conversely, a person with knowledge 'that there have been no NCIC checks run against him,' and, hence, that he is 'not on law enforcement's radar' could reasonably be expected to continue 'to engage in unlawful endeavors' with renewed vigor." Moreover, the court finds that "to the extent that plaintiff is asserting an overriding public interest to compel disclosure of otherwise exempt records, . . . , his argument is misplaced because the court's duty to weigh the privacy interests of individuals against the public's interest in disclosure arises only under exemptions 6 and 7(C), which are not asserted here."
Inst. for Pol'y Stud. v. CIA, No. 06-960, 2012 WL 3301028 (D.D.C. Aug. 14, 2012) (Lamberth, J.). Holding: Granting, in part, defendants' motion for summary judgment on the basis that certain withholdings under Exemptions 1, 2, 3 and 7(E) were proper and that plaintiff conceded other withholdings under Exemptions 2, 3, 6, 7(C), 7(D) and 7(F), and that all reasonably segregable material was released; denying plaintiff's motion to strike portions of the declarations; and ordering CIA to conduct searches for responsive records in three different directorates which were not initially searched. The court holds that CIA properly invoked Exemption 7(E) to protect the portion of a polygraph interview that would reveal "investigatory techniques and procedures of not only the agency but also certain other law enforcement agencies."
Soghoian v. DOJ, No. 11-1080, 2012 WL 3090309 (D.D.C. July 31, 2012) (Jackson, J.). Holding: Granting defendants' motion for summary judgment on the basis that they properly withheld certain information pursuant to Exemptions 5 and 7(E), released all reasonably segregable non-exempt information, and plaintiff conceded the adequacy of DOJ's search. Based on its in camera review, the court concludes that DOJ's Criminal Division properly asserted Exemption 7(E) to withhold "legal and investigative techniques that should be considered by investigators and Assistant United States Attorneys in conducting their criminal investigations." With respect to these documents, the court finds that "[k]nowing what information is collected, how it is collected, and more importantly, when it is not collected, is information that law enforcement might reasonably expect to lead would-be offenders to evade detection." Additionally, the court determines that Criminal Division and EOUSA properly withheld records containing advice and guidance in connection with particular investigations. The court finds that "[i]t is reasonable to conclude that where law enforcement seeks advice on electronic surveillance techniques, '[d]isclosure of even general guidance might reveal investigative techniques and considerations that could assist criminals in developing their own techniques for evading detection.'"
Brown v. FBI, No. 10-1292, 2012 WL 2786292 (D.D.C. July 10, 2012) (Lamberth, J.). Holding: Denying defendant's motion to dismiss; but granting defendant's motion for summary judgment on the basis that it conducted an adequate search, and properly withheld certain information pursuant to Exemptions 3, 7(C), 7(D) and 7(E); and denying plaintiff's motion for sanctions as well as his motion to supplement his motion for sanctions. Based on its in camera review, the court determines that the FBI properly asserted Exemption 7(E) to withhold "'procedures and techniques used by FBI agents to conduct criminal investigations' and techniques 'used by FBI [special agents] during the investigation of plaintiff's drug activities and plot to kidnap the granddaughter of a federal judge'" because "[t]hey describe secret law enforcement techniques and procedures, and their disclosure would promote circumvention of the law." The court also holds that DEA properly withheld the vehicle identification numbers "'associated with assets turned over to law enforcement agencies for official use'" because "[p]ublic disclosure of [such information] could allow clever criminals to circumvent the law by determining which vehicles are used in DEA's law enforcement operations."
Miller v. DOJ, No. 05-1314, 2012 WL 2552538 (D.D.C. July 3, 2012) (Lamberth, J.). Holding: Concluding that plaintiff exhausted his administrative remedies with regard to fees assessed by the FBI; and granting defendant's renewed motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 1, 3, 5, 7(C), 7(D), 7(E) and 7(F). The court determines that DEA properly asserted Exemption 7(E) to withhold NADDIS numbers, which "reflect procedures prescribed by the DEA Agents Manual,'" because their disclosure could identify law enforcement techniques or procedures. Additionally, the court concludes that DEA properly withheld TECS numbers under Exemption 7(E) on the basis that disclosure "would expose a law enforcement technique, promote circumvention of the law by allowing criminals to conceal their activity, or allow fraudulent access to DEA's databases."
McRae v. DOJ, No. 09-2052, 2012 WL 2428281 (D.D.C. June 27, 2012) (Leon, J.). Holding: Denying without prejudice defendants' motion for summary judgment on the basis that it failed to discuss EOUSA's search for responsive records or EOUSA's justification for withholding certain information under Exemption 7(C), and where it did not supply information sufficient to support ATF's claim of Exemption 7(D); granting defendants' motion for summary judgment as to the adequacy of ATF's search and its claims of Exemptions 3, 7(C) and 7(E). The court concludes that ATF properly invoked Exemption 7(E) to withhold "codes, case numbers, and other computer information pertaining to [federal law enforcement databases], and databases maintained by the North Carolina authorities" on the basis that this information constitutes "techniques and procedures for law enforcement investigation[s]" the release of which "could reasonably be expected to risk circumvention of the law."
Island Film, S.A. v. U.S. Dep't of the Treasury, No. 08-286, 2012 WL 2389990 (D.D.C. June 26, 2012) (Roberts, J.). Holding: Granting, in part, defendant's motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 4, 5, 6, 7(C) and 7(D) and conducted a reasonable search, the adequacy of which was not challenged by plaintiff; ordering defendant to provide additional submissions to justify withholding information for which it invoked Exemption 2, which is precluded by Milner, and to support certain withholdings under Exemptions 7(D) and 7(E); and directing defendant to provide segregbility analysis for certain specific documents withheld in full, but determining that defendant released all reasonably segregable portions from the remaining documents. The court concludes that Treasury's submissions do not adequately justify its decision to withhold "screen printouts from various databases it used in its investigations" pursuant to Exemption 7(E). The court determines that "[n]either the Vaughn index nor Treasury's affidavit provides a sufficiently specific link between disclosing the particular database printouts that Treasury seeks to withhold and revealing when, how, and to what extent OFAC relies on these databases in its investigations," but rather "merely recite the language of the exemption." As such, the court orders the agency to supplement its submissions on this point.
Citizens for Resp. & Ethics in Wash. v. DOJ, No. 11-592, 2012 WL 2354353 (D.D.C. June 8, 2012) (Leon, J.). Holding: Granting defendant's motion for summary judgment on the basis that it properly withheld the requested materials categorically under Exemptions 6 and 7(C), as well as Exemptions 2, 3, 7(D), and 7(E). The court determines that the FBI properly applied Exemption 7(E) "to protect law enforcement techniques and procedures used by FBI Special Agents during the investigation, which, if disclosed could cause circumvention of the FBI's ability to adequately enforce the law."
Bloomer v. DHS, No. 11-35, 2012 U.S. Dist. LEXIS 62543 (D. Vt. May 3, 2012) (Reiss, J.). Holding: Granting DHS's motion for summary judgment on the basis that it properly withheld information pursuant to Exemptions 3, 6, 7(C), 7(D) and 7(E). "Allowing the government the usual presumption of good faith, and given the liberal standards for application of Exemption 7(E), the court finds that DHS has met its burden" to withhold "various codes and case numbers." The court also notes that plaintiff "has not argued that the codes sought to be protected by Exemption 7(E) are free of [the] risk" of circumvention.
Strunk v. U.S. Dep't of State, No. 08-2234, 2012 WL 562398 (D.D.C. Feb. 15, 2012) (Leon, J.). Holding: Granting, in part, CBP's motion for summary judgment with respect to the adequacy of its search and its withholdings pursuant to Exemption 6; and denying, in part, without prejudice CBP's motion for summary judgment as to its withholdings under Exemption 7(E). The court holds that CBP failed to substantiate its Exemption 7(E) withholdings which "'consist[ed] of inspection for entry activities and dispositions' and . . . 'computer screen transaction codes.'" The court finds that "CBP's submissions offer too little detail to allow this Court to undertake a meaningful assessment of the redacted material" where its declarations state that the withheld information "may include" certain items.
Hasbrouck v. U.S. Customs & Border Protect., No. 10-3793, 2012 WL 177563 (N.D. Cal. Jan. 23, 2012) (Seeborg, J.). Holding: Granting CBP's motion for summary judgment to the extent that it is not required to produce information subject to Exemption 7(E); and granting plaintiff's motion for summary judgment to the extent that CBP must engage in further searches and produce any responsive information; and ordering parties to confer as to issues that remain in dispute. The court concludes that CBP properly withheld pursuant to Exemption 7(E) a "list of 'personal' or 'unique' identifiers by which data can be retrieved" from different CBP records. The court notes that "[w]hile it may be of little consequence to law enforcement efforts to disclose that CBP can retrieve information based on obvious identifiers such as birthdates, passport numbers, or similar data, it manifestly would implicate security concerns to disclose that CBP also tracks one or more non-obvious identifier, or for it to admit that it cannot retrieve information except by obvious identifiers."
Muslim Advocates v. DOJ, No. 09-1754, 2012 WL 84501 (D.D.C. Jan. 11, 2012) (Sullivan, J.). Holding: Granting defendant's motion for summary judgment on the basis that the FBI adequately justified its Exemption 7(E) redactions. The court concludes that "[h]aving carefully reviewed defendant's ex parte declaration[,] . . . the government has now satisfied its burden of establishing its right to withhold the information contained in Chapter 16 of the DIOG" pursuant to Exemption 7(E). The court finds that "it is both plausible and logical that the disclosure of detailed information regarding the FBI's procedures for investigation of and undisclosed participation in target organizations could risk circumvention of the law and impede the FBI's ability to carry out its mission." "Moreover, the Court finds no evidence in the record that contradicts the government's justifications for withholding the redacted information or demonstrates bad faith."
Families for Freedom v. U.S. Customs & Border Protect., No. 10-2705, 2011 WL 6780896 (S.D.N.Y. Dec. 27, 2011) (Scheindlin, J.). Holding: Granting, in part, defendant's motion for summary judgment on the basis that certain withholdings under Exemptions 5, 7(C), and 7(E) were appropriate; but ordering disclosure of other information withheld under Exemptions 7(C) and 7(E). The court allows CBP to withhold portions of minutes which memorialize a meeting between CBP and Amtrak officials regarding certain transportation checks pursuant to Exemption 7(E). For one, the court finds that the meeting notes were compiled for a law enforcement purpose where they "discuss how [CBP's] law enforcement activities impacted [Amtrak's] transit operations and how they might adjust those activities." As to plaintiffs' argument that the notes cannot be withheld because the transportation checks are generally known to the public, the court finds that "the redactions protect details concerning specific techniques used in these transportation checks, not generalities concerning the existence of the checks." Based on its in camera review, the court indicates that the notes discuss "how often the Border Patrol checks various specific trains, what time of day and at what stations it makes those checks, how its agents board and navigate the trains, and other issues relating to the agency's law enforcement techniques" which "'would disclose techniques and procedures for law enforcement investigations,' not simply 'guidelines and procedures for law enforcement investigations.'" Accordingly, the court finds "it is irrelevant whether such disclosure 'could reasonably be expected to risk circumvention of the law.'" However, the court concludes that certain information contained in the notes was not properly withheld under Exemption 7(E). In particular, the court holds that the job titles of meeting attendees, historical statistics, and other specific passages must be released.
With regard to emails containing staffing and arrest statistics, agency definitions and names and identifying information, the court determines that some information can remain redacted, but other information should be released. Specifically, the court concludes that the arrest statistics associated with the requested years must be disclosed. As to staffing statistics, the court rejects CBP's assertion that "[d]isclosure of manpower devoted to particular investigatory techniques could aid circumvention of the law, in that persons seeking to evade the law could focus their efforts on areas with less manpower." Noting that CBP's staffing "practices have changed dramatically in recent months," the court concludes that "[r]elease of historical staffing statistics could not reasonably be expected to risk circumvention of the law." The court also determines that Exemption 7(E) does not apply to definitions which "relate to whether [certain transit] nodes are monitored routinely or only in response to specific intelligence," commenting that "the redacted definitions include little substantive information beyond that already disclosed in [CBP's] declaration."
McCann v. HHS, No. 10-1758, 2011 WL 6251090 (D.D.C. Dec. 15, 2011) (Boasberg, J.). Holding: Granting HHS's motion for summary judgment where it properly withheld material pursuant to Exemptions 5, 6, and 7(E) and disclosed all reasonably segregable information. First, the court determines that the requested records, which "were 'compiled to conduct investigations into Plaintiff's civil rights complaints' . . . [which] could subject one to civil or criminal penalties," satisfy Exemption 7's threshold. The court then determines that HHS properly invoked Exemption 7(E) to protect "a six-page internal document and a duplicate that contain 'procedures, techniques, and guidelines for investigating potential violations of the HIPAA Privacy Rule by hybrid entities.'" The court concludes that "[c]onsidering the availability of civil and criminal penalties for HIPAA violations, Defendant reasonably contends that the disclosure of information about the agency's investigatory tools could 'risk circumvention of the law.'"
ACLU v. ODNI, No. 10-4419, 2011 WL 5563520 (S.D.N.Y. Nov. 15, 2011) (Sullivan, J.). Holding: Concluding that defendants have failed to justify the majority of their withholdings made pursuant to Exemptions 1, 3, and 7(E); denying plaintiff's motion to strike defendants' submission of classified declarations; granting, in part and denying in part, plaintiff's motion for an in camera review, and ordering defendants to submit for in camera review Vaughn indices and, if necessary, supplementary Vaughn affidavits; and deferring ruling on the parties cross-motions for summary judgment pending submission of supplemental materials. The court concludes that the FBI's declaration "offers little more than a generic assertion that disclosure [of internal e-mails, training slides, legal opinions, interpretations of techniques, Standard Operating Procedures, electronic communications . . . concerning investigations, case write-ups, and miscellaneous reports] 'could enable targets to avoid detection or develop countermeasures to circumvent' law enforcement efforts." Accordingly, the court finds "such boilerplate as insufficient to carry the FBI's burden with respect to the Exemption 7(E) withholdings."
Muslim Advocs. v. DOJ, No. 09-1754, 2011 WL 5439085 (D.D.C. Nov. 10, 2011) (Sullivan, J.). Holding: Granting, in part, defendant's motion for summary judgment based on its finding that the FBI properly redacted two disputed chapters pursuant to Exemption 7(E), but ordering the FBI to submit a supplemental affidavit to provide further justification for withholding a third chapter; and denying plaintiff's motion for summary judgment. The court concludes that the FBI properly invoked Exemption 7(E) to withhold two chapters of the DIOG, but concludes that the FBI has not made a sufficient showing with respect to a third withheld chapter. The court rejects plaintiff's claim that the FBI has waived its ability to assert Exemption 7(E) by virtue of showing disputed chapters to plaintiff and other groups at two meetings. Rather, the court determines that "the FBI's limited disclosure at the November 2008 meetings does not preclude the agency's claim of Exemption 7(E) as to the redacted material." With respect to the news articles proffered by plaintiff that discuss certain investigative techniques employed by the FBI, the court finds that "[a]lthough some information regarding the FBI's use of the particular techniques and procedures discussed in the disputed chapters may be known, '[t]here is no principle . . . that requires an agency to release all details concerning [its] techniques simply because some aspects of them are known to the public[.]'" "Because 'the public does not have specific knowledge of the circumstances in which undisclosed participation is or is not allowed in FBI investigations or what undisclosed participants are or are not allowed to do,' . . . the Court is not persuaded that plaintiff's news articles require the FBI to release the redacted portions of the DIOG." As to the propriety of the specific redactions, the court finds that "based upon the limited amount of information withheld from [two] chapters, the agency's affidavits, in conjunction with a review of the released material and the agency's index, provides the Court with enough context to conclude that the FBI fairly and accurately described the withheld material and the potential danger created by its release." However, with regard to a chapter that "is entirely redacted with the exception of the opening paragraph" and one section, the court concludes that "the affidavit is not sufficiently detailed to allow this Court to undertake a meaningful assessment of the redacted material." As such, the court orders the FBI "to submit a more specific affidavit providing additional details in support of its extensive redactions in this chapter."
Kellerhals v. IRS, No. 2009-90, 2011 WL 4591063 (D.V.I. Sept. 30, 2011) (Gómez, J.). Holding: Adopting magistrate's recommendation that the IRS properly withheld information pursuant to Exemptions 3, 5, 7(A), and 7(E); but concluding that one document containing mainly factual data could be produced with appropriate redaction. Based on its in camera review, the court adopts the magistrate's recommendation that certain records were properly withheld pursuant to Exemptions 7(A) and 7(E) because "they either contain information which could interfere with ongoing law enforcement proceedings or which would reveal law enforcement techniques or fall within another exemption."
Banks v. DOJ, No. 06-1950, 2011 WL 4448602 (D.D.C. Sept. 26, 2011) (Sullivan, J.). Holding: Granting partial summary judgment to defendant based on plaintiff's failure to exhaust his administrative remedies for two requests and on the propriety of defendant's withholdings under Exemptions 6 and 7(C); and denying, without prejudice, defendant's motion for summary judgment for information withheld pursuant to Exemptions 7(D) and 7(E). The court denies, without prejudice, summary judgment with respect to USPIS's assertion of Exemption 7(E) for "specific law enforcement techniques . . . used during the investigation of the criminal activity which resulted in [p]laintiff's incarceration." At the outset, the court notes that "[n]otwithstanding the categorical protection to law enforcement techniques and procedures afforded under the first clause of Exemption 7(E), no agency can rely on a declaration written in vague terms or in a conclusory manner."
Adionser v. DOJ, No. 10-27, 2011 U.S. Dist. LEXIS105035 (D.D.C. Sept. 15, 2011) (Leon, J.). Holding: Granting summary judgment in favor of defendants based on the adequacy of their searches and the propriety of their exemption claims. The court holds that the FBI properly asserted Exemption 7(E) to withhold "law enforcement techniques and procedures that relate to the identification and contents of the FBI databases." The court finds that the FBI "provides a reasonable explanation for why disclosure of such information could impede investigations."
Kortlander v. BLM, No. 10-132, 2011 U.S. Dist. LEXIS 103264 (D. Mont. Sept. 13, 2011) (Cebull, J.). Holding: Upon conducting an in camera review, granting summary judgment to defendant based on its claims of exemption and the adequacy of its search. The court determines that BLM properly invoked Exemption 7(E) to withhold information about techniques used in undercover investigations. Here, "the use of some techniques [is] not known to the public" and, additionally, "[t]he information is the type of information that would disclose techniques that could reasonably be expected to risk circumvention of the law." The court observes that "[k]nowing how law enforcement plans and executes undercover operations is the type of information that, if made public, could allow for planning criminal activity to avoid detection."
Skinner v. DOJ, No. 09-725, 2011 U.S. Dist. LEXIS 94450 (D.D.C. Aug. 24, 2011) (Friedman, J.). Holding: Granting, in part, defendants' renewed motion for summary judgment based on its withholdings under Exemptions 6, 7(C), and 7(E); denying, in part and without prejudice, defendants' motion for summary judgment with respect to information withheld under Exemption 2. Noting that "D.C. Circuit precedent 'sets a relatively low bar for the agency to justify withholding' information under Exemption 7(E)," the court concludes that USCIS properly withheld a printout from the Treasury Enforcement Communications System containing, among other things, an "'all-points bulletin' regarding an ongoing criminal law enforcement operation; a brief profile of the subject of this communication, including his involvement, habits and level of threat; subject tracking; and actions to be taken by law enforcement agents stationed at check points if subjects are encountered.'" Defendant asserts that "[r]elease of this information to plaintiff . . . 'will have the unintended and undesirable result of placing the same information at the disposal of other subjects of investigation(s), assisting them to evade detection and apprehension by alerting them to the investigation techniques used to aid the underlying law enforcement operation and, thereby, impair the effectiveness of those law enforcement techniques.'" The court notes that "[l]aw enforcement procedures and techniques are afforded categorical protection under Exemption 7(E), . . . and plaintiff presents no argument to rebut the USCIS' showing that the information withheld falls within the scope of such protection."
Techserve Alliance v. Napolitano, No. 10-353, 2011 WL 3606525 (D.D.C. Aug. 17, 2011) (Lamberth, J.). Holding: Granting defendants' motion for summary judgment on the basis that its search was adequate and its assertions of Exemptions 5 and 7(E) were proper. The court concludes that USCIS properly invoked Exemption 7(E) to withhold "documents related to 'requests for evidence' in response to a benefits application or petition." The court finds that "[s]ince USCIS collaborates with other agencies within and outside of DHS to prevent immigration fraud, disclosing any of the aforementioned documents would reveal the selection criteria, fraud indicators, and investigative process that USCIS and other agencies use in fraud investigations during the H1-B visa process." Accordingly, "[r]eleasing this information would potentially enable the circumvention of law and could create national and homeland security problems."
McGehee v. DOJ, No. 01-1872, 2011 WL 3375532 (D.D.C. Aug. 5, 2011) (Kessler, J.). Holding: Granting, in part, defendant's motion for summary judgment with respect to the adequacy of its search and its withholdings pursuant to Exemptions 3, 7(C), 7(D), and 7(E); and denying, in part, defendant's motion with respect to the adequacy of its Vaughn Index. The court holds that Exemption 7(E) was properly invoked to withhold "'the type of Stop Notice placed on certain survivors/victims,'" which "is a technique utilized by the FBI to obtain information concerning the movement of individuals of interest." Although plaintiffs argue that the FBI has not demonstrated that "'this technique is generally unknown to the public'" or shown that a risk of circumvention could reasonably be expected to occur, the court finds that "Exemption 7(E) may be used to protect information where disclosure reasonably could lead to circumvention of laws or regulations even where the existence of the general technique is known to the public." The court concludes that this information was properly withheld "[b]ecause '[r]elease of the types of stops could allow individuals to circumvent the law by avoiding discovery if they are aware of what action the FBI is requesting from an agency by the placement of a particular type of Stop.'"
Nat'l Day Laborer Organizing Network v. U.S. Immigr.& Customs Enforcement Agency, No. 10-34888, 2011 WL 2693655 (S.D.N.Y. July 11, 2011) (Scheindlin, J.). Holding: Granting, in part, and denying, in part, defendants' motion for summary judgment; granting, in part, and denying, in part, plaintiffs' motion for summary judgment; and ordering defendants to provide additional justification regarding certain information withheld pursuant to the deliberative process and attorney-client privileges. As preliminary matter, the court notes that plaintiffs do not challenge defendants' claim of Exemptions 2 and 7(E) and, accordingly, "have waived any argument that the exemptions were improperly asserted." As such, the court grants summary judgment to the defendants with respect to "their assertions of Exemption 7(E) throughout the production." In consideration of the Supreme Court's decision in Milner, the court "also grant[s] summary judgment to defendants on their assertions of Exemption 2, where such reference is to what was formerly known as Low 2." The court notes that documents for which only High 2 was asserted "will be addressed at a later date."
Kubik v. BOP, No. 10-6078, 2011 U.S. Dist. LEXIS 71300 (D. Or. July 1, 2011) (Coffin, Mag.). Holding: Granting, in part, BOP's motion for summary judgment with respect to its assertion of Exemption 5 and certain redactions under Exemption 7(C); granting, in part, plaintiffs' motion for summary judgment with respect to the adequacy of the search and information withheld pursuant to Exemptions 7(C), 7(E) and 7(F). As discussed in connection with Exemption 7(C), the court finds that BOP has not established that a video and portions of a document satisfy the threshold of Exemption 7. However, the court notes that "[e]ven if BOP had established a law enforcement purpose behind the compilation of the BOP review and report on the April 2008 riot and the prison surveillance tape which shows [plaintiffs' son] being shot, it cannot establish that the release of the video or the withheld portions of [the] document [ ] could reasonably be expected to risk circumvention of the law." Further, the court comments that "the tactical maneuvers used during the riot as well as the events recorded on the video are no secret to prison inmates" and finds that BOP has not supported its assertion that the "utility of the surveillance cameras would be compromised if inmates knew the location of the cameras." However, noting that plaintiffs do not object to redacting the location of a weapons storage area, the court permits BOP to redact that information.
Families for Freedom v. U.S. Customs & Border Protect., No. 10-2705, 2011 U.S. Dist. LEXIS 63829 (S.D.N.Y. June 16, 2011) (Scheindlin, J.). Holding: Granting, in part, defendants' motion for summary judgment as to withholdings under Exemption 5; and granting, in part, plaintiffs' motion for summary judgment with respect to material withheld under Exemptions 6, 7(C), and 7(E). Defendants initially withheld certain records pursuant to Exemption 2 as well as Exemption 7(E). After the Supreme Court's decision in Milner v. Department of Navy, the defendants advised the court that its "analysis is little altered, as defendants claimed Exemptions 7(E) and High 2 concurrently to those documents." Accordingly, the court "address[ed] only the applicability of Exemption 7(E) to the contested documents." The court concludes that defendants must release the total number of all arrests made each year by the Rochester Station and the number of transportation raid arrests within the Buffalo Sector. "Such statistics are neither 'techniques or procedures' nor 'guidelines,' such that they could be properly exempt under 7(E)." While the court notes that it "need not reach whether the disclosure of such information risks circumvention of the law," it finds, in any event, such a risk is not present here because "[p]laintiffs are not requesting arrest statistics for each station within the Buffalo sector, which could theoretically aid circumvention of the law by publicizing the relative activity or success of Border Patrol agents in affecting apprehensions at each station, as defendants fear." Moreover, the court concludes that "[t]o the extent that the Daily Reports include arrest data broken down by station, defendants may redact the information so that only the Rochester Station arrest data and Buffalo Sector arrest totals are disclosed." Additionally, the court requires defendants to segregate any nonexempt information from the comments section of the reports. The court notes that "[g]iven the nature of the Buffalo Sector Daily Reports, [it] would expect the vast majority of information contained therein to be retrospective, and therefore not to constitute 'guidelines' under FOIA."
The court also concludes that defendants may not use Exemption 7(E) to withhold "charge codes" from certain sample arrest forms, which "'indicate the legal reason an individual was arrested for violation of immigration laws.'" The court finds that although the arrest forms "constitute 'records or information compiled for law enforcement purposes," the release of the charge codes contained therein would not 'disclose techniques or procedures for law enforcement investigations or prosecutions, or . . . guidelines for law enforcement investigations or prosecutions.'" Moreover, the court notes that "[g]iven that defendants have already released [the catalogue of available charge codes], it is difficult to imagine how the codes cited on particular sample [arrest] forms will compromise the security of agency databases or otherwise risk circumvention of the law."
Raher v. BOP, No. 09-526, 2011 WL 2014875 (D. Or. May, 24, 2011) (Stewart, Mag.). Holding: Granting, in part, plaintiff's motion for summary judgment with respect to records withheld under Exemptions 3, 7(E) and 7(F) and certain records withheld pursuant to Exemption 4; concluding that an evidentiary hearing is necessary to resolve a factual dispute with respect to certain records withheld under Exemption 4; and ordering that BOP supplement the record with regard to its search for certain documents. With respect to Exemption 7(E), the court finds that "[a]lthough BOP has shown that disclosure of information pertaining to 'security electronics,' 'security inspection system,' and staffing vulnerabilities raises security concerns with respect to its custodial functions, it has submitted nothing to explain why the withheld documents pertain to law enforcement functions that are protected from disclosure under Exemption 7(E)." The court notes that assuming "BOP qualifies as a law enforcement agency and compiles the requested records for the law enforcement purpose of maintaining security, it must still show that the withheld records are techniques, procedures or guidelines for 'law enforcement investigations or prosecutions' covered by Exemption 7(E)." Because BOP has failed to make such a showing, the court "grant[s] summary judgment to plaintiff as to Exemption 7(E)."
ACLU of Wash. v. DOJ, No. 09-0642, 2011 WL 1900140 (W.D. Wash. May 19, 2011) (Lasnik, J.). Holding: Granting, in part, and denying, in part, defendants' motion for reconsideration; permitting government to supplement its Vaughn index with respect to certain withholdings prior to reviewing the contested documents in camera; and concluding that defendants provided an insufficient basis for withholding certain information pursuant to Exemption 7(E). The court orders defendants to provide additional justification for withholding non-public "information describing suspicious indicators that law enforcement officers should look for when attempting to detect possible terrorist activity" under Exemption 7(E). The court also finds that defendants' description of the nature of "procedures [that] the Terrorist Screening Center ('TSC') follows once the identity of a known or suspected terrorist has been confirmed by reference to the Violent Gang and Terrorist Organizations File ('VGTOF')" "is cryptic and sparse." The court concludes that defendants failed to provide "'a particularized explanation of how disclosure of the particular document would damage the interest protected by [Exemption 7(E)]" and did not describe how the disclosure of the document would "give rise to a reasonable expectation that identifying the agencies that follow up on a positive VGTOF response will thwart law enforcement." With respect to a government form used "to supply information regarding individuals for entry into VGTOF," the court rejects defendants' arguments that "disclosure of the minimum level of interest or investigative status necessary for inclusion in the VGTOF will be detrimental to national security." The court notes that "[a] positive VGTOF response is not disclosed to the individual" and that "a person who already suspects or affirmatively believes that he is on the VGTOF watchlist has all the incentive he needs – or is likely to get – to conceal illegal activities, destroy evidence, and/or modify his behavior." Accordingly, the court finds that "[t]he agency has not shown that disclosure of additional criteria for entry in the VGTOF could reasonably be expected to risk circumvention of the law under Exemption 7(E)."
ACLU of Wash. v. DOJ, No. 09-0642, 2011 WL 887731 (W.D. Wash. Mar. 10, 2011) (Lasnik, J.). Holding: Granting in part defendant's motion for summary judgment and ordering supplemental Vaughn index or disclosure. The court concludes that the FBI has not demonstrated that Exemption 7(E) applies to records containing operating procedures related to watchlists where "[t]here is no indication . . . that every policy or protocol in the document reveals information that could be utilized to avoid detection or develop countermeasures." Similarly, the court finds that the FBI has not sufficiently justified its decision to withhold personal identifiers contained on forms that are used "to supply information for entry into VGTOF." The court reasons that "the fact that the list of [these] identifiers was [publicly] disclosed in the past suggests that its public availability did not present a risk of circumvention of agency regulation."
As to the withholding of "documents that identify where particular sorts of data are recorded within the agency's databases and/or systems," the court finds that the FBI "makes no effort to explain how disclosure of a system's architecture (i.e., where certain pieces of information are stored in relation to others) could allow persons to circumvent VGTOF." The court also holds that Exemption 7(E) is not applicable to documents referencing a certain watchlist procedure, nomination criteria for entry into VGTOF, VGTOF field codes, and guidelines for encounters with watchlisted individuals because this information has been previously publicly disclosed. However, the court affirms the FBI's decision to withhold "terrorist-related trend information," which "'could serve to warn suspected terrorists that the FBI is aware of their plans and they could then take countermeasures against law enforcement.'"
Riser v. Dep't of State, No. 09-3273, 2010 U.S. Dist. LEXIS 112743 (S.D. Tex. Oct. 22. 2010) (Ellison, J.). "In light of [the Fifth Circuit decision in Benavides] and the need for courts to 'narrowly construe[]' FOIA exemptions[,] . . . the Court interprets Exemption (b)(7)(E) to allow withholding of law enforcement techniques or procedures only if the agency demonstrates that disclosure could reasonably be expected to risk circumvention of the law." Based on its in camera review of form INV-50, the court determines that OPM was justified in withholding a portion of the document for which "there is a reasonable risk of circumvention of the law upon [its] disclosure." However, the court concludes that Exemption 7(E) does not apply to a paragraph that "discusses only the division of labor among subagencies in handling questions and requests relating to the use of protected sources in background checks."
Council on Am.-Islamic Relations, Cal. v. FBI, No. 09-823, 2010 WL 4024806 (S.D. Cal. Oct. 12, 2010) (Gonzalez, J.). The court holds that the FBI properly asserted "high 2" and Exemption 7(E) to withhold an internal questionnaire because its disclosure "undoubtedly would allow the targets of these investigations to avoid the specific questions and methods recommended in the questionnaire." The court also notes that "even if the names of the targets are redacted, people knowledgeable of the facts might still be able to figure out the overall 'pattern,' which would facilitate the 'circumvention of agency regulations.'" Additionally, the court determines that FBI properly withheld "information pertaining to the internal dissemination of information" and "information relating to the dates and types of investigations as well as the basis for initiating them," under "high 2" because disclosure of such information would allow individuals to circumvent agency regulations and/or investigations. The court holds that the FBI also properly invoked Exemptions 2 and 7(E) to withhold information pertaining to investigative tools and techniques. The court observes that "contrary to Plaintiffs' arguments, Exemption 2 may be invoked even with respect to publicly-known investigative techniques and procedures" and also finds "little support for Plaintiffs' allegations that the non-disclosure is improper because Defendants have not accounted for allegedly illegal activities."
Skinner v. DOJ, No. 09-725, 2010 WL 3832602 (D.D.C. Sept 30, 2010) (Friedman, J.). Based on ATF and the FBI's representations and "absent any substantive challenge from plaintiff, the court finds that defendants properly asserted Exemptions 2 (high) and 7(E) to protect "firearms toolmark examination techniques and search and arrest warrant techniques," "'a form used by FBI [agents] to report investigative accomplishments,'" and "'procedures and techniques used by the FBI [agent] during plaintiff's and other primary subjects' [undercover] drug distribution investigation.'"
Clemente v. FBI, No. 08-1252, 2010 WL 3832047 (D.D.C. Sept. 28, 2010) (Friedman, J.). Exemptions 2 & 7(E): The court concludes that the FBI properly withheld informant codes and the file numbers associated with those codes under Exemption 2 as they are "'a matter of internal significance in which the public has no substantial interest.'" However, with respect to the FBI's decision to redact the "current" number of informants from certain responsive documents pursuant to Exemptions 2 and 7(E), the court notes that "[i]t is difficult to imagine how disclosure of the number of individuals informing on the Mafia in the 1960s would create a risk of circumvention of the law in the 2010s." Accordingly, the court finds that the FBI may "attempt to justify withholding" any numbers that "may reasonably be characterized as 'current,'" but may not withhold any "[r]eferences having only historical significance." The court also holds the "Exemption 2 does not apply to operational funds in this case," rejecting the FBI's "cursory" argument that individuals could exploit the information to "'to exhaust the FBI's funding of a particular investigation.'" Lastly, the court determines that "the FBI has provided the Court with no means by which it can determine whether [certain] information withheld [under Exemptions 2 and 7(E)] relates to techniques whose disclosure could result in evasion of the law; [where it] has not made even a cursory attempt to describe the type of techniques and procedures . . . and the context of the redactions reveals little to nothing."
ACLU v. DHS, No. 08-1100, 2010 U.S. Dist. LEXIS 98849 (D.D.C. Sept 20, 2010) (Walton, J.). Defendants correctly asserted Exemption 7(E) to protect a one-page record related to the Civil Rights Office's "'methods for conducting investigations.'" The court finds that disclosing the information "would provide insight into ICE's security measures, which could circumvent those measures and compromise the safety of detainees and employees at its detention facilities where its detainees are housed."
Sussman v. U.S. Marshals Serv., No. 03-610, 2010 U.S. Dist. LEXIS 90723 (D.D.C. Sept. 1, 2010) (Kennedy, J.). The court determines, based on its in camera inspection, that USMS properly withheld the names of investigative databases, noting that it had ruled in an earlier opinion in connection with this case that disclosure "would reveal how the USMS uses databases and conducts investigations, thereby allowing fugitives to circumvent investigative procedures." USMS properly asserted Exemption 7(E) to withhold its methods for conducting threat assessments because disclosure "'would allow other threatening parties to bypass specific investigative channels and would ultimately allow such threateners to circumvent the law and evade detection and develop countermeasures to USMS protective arrangements.'" Likewise, USMS was correct to withhold "information that reveals how the USMS's threat assessment procedures were applied to [plaintiff]," because "disclosing the use of these internal procedures would allow others to circumvent them." The court also notes that the withholding of an internal website address pursuant to Exemption 2 was appropriate.
Holt v. DOJ, No. 09-1515, 2010 WL 3386016 (D.D.C. Aug. 26, 2010) (Walton, J.). The court holds the FBI properly asserted Exemption 7(E) to protect "information in the ViCAP file [that] would 'reveal the characteristics and data [related to crimes of violence] . . . collected and tracked using this system [which] could allow offenders to circumvent discovery'" "' by modifying or avoiding certain behavior/activities connected with his/her criminal conduct.'" The court notes that "absent a showing by the plaintiff that rebuts the declarant's assertion that ViCAP's techniques are not well known to the public, the Court presumes that the declaration is made in good faith and therefore accepts the agency's representation on this point."
Showing Animals Respect & Kindness v. Dep't of the Interior, No. 09-877, 2010 WL 3191801 (D.D.C. Aug. 12, 2010) (Kollar-Kotelly, J.). The court finds that defendants adequately justified their use of Exemption 7(E) to withhold certain files that "reveal specific details of surveillance techniques, including equipment used and location and timing of use, the revelation of which could compromise [the United States Fish and Wildlife Service's] ability to conduct future investigations at various National Wildlife Refuges."
Tunchez v. DOJ, 715 F. Supp. 2d 49 (D.D.C. June 3, 2010) (Kollar-Kotelly, J.). Despite plaintiff's arguments to the contrary, the court finds that the FBI has adequately justified its assertion of Exemption 7E. The FBI's declarations demonstrate that the withheld pages would "identify which among the 27 techniques and procedures listed on the documents were used in investigating [plaintiff] and the FBI's evaluation of those techniques and procedures" and that the disclosure of this information could aid other investigative targets in evading detection.
Vento v. IRS, No. 08-159, 2010 WL 1375279 (D.V.I. Mar. 31, 2010) (Sanchez, J.). The court finds that the IRS properly utilized this exemption to withhold a "memorandum detail[ing] the guidelines for when and how the agency processes IRS summons issued to U.S.-based entities when records are located abroad. Disclosing this information would supply parties who wish to avoid compliance with the summonses with information on how to circumvent them." Similarly, the IRS properly withheld faxed requests for tax returns from an IRS liaison which contain "information related to a secure internal database of confidential agency information, including third-party tax information."
Banks v. DOJ, No. 06-1950, 2010 WL 1172593 (D.D.C. Mar. 26, 2010) (Sullivan, J.) (parties' motions for summary judgment denied without prejudice). Exemptions 2, 3, 5, 6, 7(C), 7(D), & 7(E): The court finds that USPIS has not adequately justified its decision to invoke these exemptions to withhold records. Defendant's Vaughn index "falls short . . . both in its failure to discuss the nature or type of information withheld and its tendency to restate the statutory language of the exemptions claimed as its sole justification for withholding the relevant information. The accompanying declaration offers no additional information to compensate for the Vaughn index's deficiencies." USPIS's declaration repeatedly fails to establish that its withholdings were consistent with statutory standards.
ACLU v. DOJ , No. 08-1157, 2010 WL 1140868 (D.D.C. Mar. 26, 2010) (Robertson, J.). Exemptions 2 & 7(E). DOJ properly withheld "guides or samples that AUSAs use in drafting applications, orders and declarations to obtain authorization for cell phone monitoring. These documents are not final applications or orders, so it is quite evident that they are 'predominantly internal.' And, the government provides adequate affidavit support for its argument that release of the redacted information would risk circumvention of the law because it would reveal information about how co-conspirators can be identified, the conditions under which cell phone tracking would not work, and details about the conditions necessary for cell phone tracking to be effective." DOJ also appropriately withheld "information on law enforcement techniques that are not readily available to the public." "As the government correctly points out, the first prong of Exemption 7(E) permits withholding of information that would disclose techniques and procedures for law enforcement investigations or prosecutions without a showing [of] risk of circumvention." The withheld records "reveal[] limitations of the law enforcement techniques, details about what the cell phone records can capture, and uses of the records that are not obvious or well-known."
Span v. DOJ, No. 08-2183, 2010 WL 1007858 (D.D.C. Mar. 22, 2010) (Kennedy, J.). Exemptions 2 & 7(E). Defendant properly asserted these two exemptions to withhold "its internal assessment ratings of publicly known law enforcement techniques and procedures." Plaintiff's claim that the exemptions only apply to "techniques or procedures that are not generally known to the public" is incorrect. The FBI's "investigative techniques 'are rated numerically to memorialize their effectiveness' and . . . '[i]f the form contains a numerical rating adjacent to one or more of the listed investigative techniques, all columns of ratings are excised in order to preclude disclosure of both the particular investigative techniques used in the investigation and the effectiveness of the individual techniques.'"
Gerstein v. CIA , No. 06-4643, 2010 U.S. Dist. LEXIS 15578 (N.D. Cal. Feb. 23, 2010) (Chesney, J.). "It is readily foreseeable that the manner in which OPR investigates leaks and makes recommendations as to the handling of its investigations could assist individuals who seek to make or receive unauthorized disclosures. In short, OPR has shown that further disclosure of [the withheld document] would 'risk circumvention of the law.'"
Sellers v. DOJ , No. 08-0840, 2010 WL 545939 (D.D.C. Feb. 17, 2010) (Kennedy, J.). The FBI properly invoked these two exemptions to withhold portions of an investigative form which defendant uses to rate the effectiveness of certain of its investigative techniques. Plaintiff's assertion that this information may be withheld only as to techniques that are not well-known is incorrect.
Hussain v. DHS , No. 07-1633, 2009 WL 4884019 (D.D.C. Dec. 18, 2009) (Friedman, J.). DHS did not adequately justify its withholdings pursuant to Exemption 7(E) because its affidavit "provide[d] almost no description of the material withheld." In an instance where it summoned some support for its redaction, DHS did not demonstrate "why the disclosure of the name of [a certain computer] system would 'reasonably be expected to risk circumvention of the law.'"
Kurdykov v. U.S. Coast Guard , No. 07-1131, 2009 WL 3103779 (D.D.C. Sept. 29, 2009) (Walton, J.). Defendant properly withheld information pertaining to surveillance techniques and methods. Disclosure of this information "could allow others to circumvent maritime counter-narcotics efforts in the future."
Jordan v. DOJ , No. 07-02303, 2009 WL 2913223 (D. Colo. Sept. 8, 2009) (Blackburn, J.) (adopting magistrate's recommendation). BOP properly asserted Exemption 7(E) to withhold photocopied inmate correspondence contained in an internal investigative file. Since BOP only photocopies and maintains certain pieces of the inmate correspondence that it monitors, the court determined "that ordering the release of photocopied mail contained in Plaintiff's SIS file would disclosure techniques for law enforcement investigations that could reasonably be expected to risk circumvention of the law." The court finds that "[it] is not required to make any particular finding of harm or circumvention of the law when evaluating" Exemption 7(E)'s applicability to law enforcement techniques.
Judicial Watch, Inc. v. U.S. Dep't of State , No. 08-1011, 2009 WL 2842881 (D.D.C. Sept. 3, 2009) (Leon, J.). Defendant also properly invoked this exemption to withhold the hearing notes. These notes "regard investigations of 'criminal wrongdoing and administrative misconduct' by government employees. If the information were disclosed, the targeted employees would be able to 'ascertain [the government's] interest' in and 'thwart or interfere with' the internal investigation."
Defenders of Wildlife v. U.S. Border Patrol , No. 04-1832, 2009 WL 1620790 (D.D.C. June 11, 2009) (Friedman, J.). "Other than accepting the agency's summary conclusion on its face or reviewing the document itself, the Court has no basis to determine" whether DHS has satisfied the requirements for use of this exemption.
Harrison v. BOP, No. 07-1543, 2009 WL 1163909 (D.D.C. May 1, 2009) (Friedman, J.).EPlaintiff's only challenge to BOP's use of this exemption is to allege that the documents in question were not compiled for law enforcement purposes. However, the records in question are "records that might easily qualify as ones compiled for law enforcement purposes. In the face of a sworn statement by an agency, . . . the plaintiff's non-specific challenge is insufficient to 'set out specific facts showing a genuine issue for trial.'"
