Am. Civil Liberties Union of N. Cal. v. FBI, No. 12-3728, 2015 WL 678231 (N.D. Cal. Feb. 17, 2015) (Illston, J.)

Am. Civil Liberties Union of N. Cal. v. FBI, No. 12-3728, 2015 WL 678231 (N.D. Cal. Feb. 17, 2015) (Illston, J.)

Re: Request for records concerning the "Occupy" movement

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations, In Camera Inspection:  "[T]he Court will reexamine the documents for which summary judgment was denied in camera, in light of the government's latest declaration."  The court finds that, "[h]ere, the parties agree—and the Court concurs—that in camera review is appropriate in light of the government's prior failed attempts to show, through declarations, that it may withhold certain documents pursuant to the claimed exemptions."  "In camera review is also appropriate given that a relatively small number of documents—roughly twenty-seven pages—remain at stake here."
   
• Exemption 7, Threshold:  "The Court finds that [the] additional detail [provided by defendant] is sufficient to establish a nexus between these documents and the stated law enforcement purpose."  The court relates that, "[i]n its latest declaration, the government responds by noting that for certain enumerated documents, the potential criminal conduct includes (1) assaulting, resisting, or impeding certain officers or employees; (2) conspiracy to commit offense or to defraud the United States; (3) conspiracy to impede or injure an officer; (4) solicitation to commit a crime of violence; (5) distribution of information relating to explosives, destructive devices, and weapons of mass destruction; (6) malicious mischief–government property; and (7) providing material support to terrorists."
   
• Exemption 7(A):  The court finds that "[u]pon reviewing the document [at issue] in camera, the Court finds that the government must also release [one additional sentence] as it is reasonably segregable."  "All other portions withheld pursuant to Exemption 7(A) are sufficiently narrowly tailored."
   
• Exemptions 6 and 7(C):  The court notes that "[t]he FBI applied Exemptions 6 and 7(C) to protect the privacy interests in the names or identifying information of four types of people: (1) FBI agents and support personnel, (2) third parties who have provided information to the FBI, (3) third parties merely mentioned in the documents, and (4) local law enforcement officers."  "Plaintiffs do not challenge the first category."  "Plaintiffs argue that with respect to the last three categories, the public interest in disclosure outweighs the privacy interests."  Regarding third parties, the court finds that defendant failed "to show why it would be reasonable to conclude that the third parties might be subject to retaliation, harassment, or other negative consequences if their names are revealed, and why the release of their names would not shed any light on the FBI's performance of its statutory duties."  "Therefore, in camera review is appropriate."  However, "[u]pon reviewing the documents, the Court finds that releasing the names of the third parties could reasonably lead to an invasion of their privacy."  Regarding local law enforcement officers, "the Court finds that the FBI had sought to withhold only the names of the local law enforcement officers pursuant to these exemptions, and has therefore withheld only non-segregable information."
   
• Exemption 7(D):  The court notes that "[t]he FBI continues to rely on the same justifications which the Court has previously found to be insufficiently detailed to establish the existence of an implied promise of confidentiality—namely, that the source is a member of an allegedly violent group, and that he or she could potentially face retaliation if it is discovered that he or she cooperated with law enforcement."  "However, upon reviewing the relevant documents, the Court finds that an implied assurance of confidentiality did in fact exist, such that withholding pursuant to Exemption 7(D) was appropriate."
   
• Exemption 7(E):  The court holds that "[a]ny documents, or portions of documents, withheld solely on the basis of 7(E) must be produced."  The court notes that "[t]he FBI asserted Exemption 7(E) for five types of information: (1) database and database information; (2) collection and/or analysis of information; (3) specific law enforcement techniques utilized to conduct national security and intelligence investigations; (4) file numbers; and (5) the identity of FBI units."  "Aside from abandoning this exemption as to the first type of information, . . . the FBI largely reiterates the same arguments that this Court has previously found to be wholly insufficient in its two prior orders."  Therefore, the court finds that "[h]ere, the government's failure to meet its burden through public declarations appears to be symptomatic of the fact that the claimed exemption simply does not apply to the withheld material."  "Accordingly, upon reviewing the relevant documents in camera, the Court finds that the FBI may not rely upon Exemption 7(E) to withhold any information in the documents at issue."