Re: Request for records from plaintiff's criminal case
Disposition: Granting summary judgment for defendants
- Adequacy of the Search: "Defendants submit that it performed a search that was reasonably expected to product the information requested; plaintiff does not dispute this."
- Exemption 3: "Plaintiff has made no argument to dispute the authorities argued by defendant as to exemption 3." "The court finds that the EOUSA properly exempted the grand jury transcripts from disclosure."
- Exemption 5/Attorney Work Product & Deliberative Process Privileges: The court concludes that defendant properly withheld "an AUSA-created prosecution memo regarding a child pornography case and correspondence to the government's expert witness describing legal analysis, theory of the case and task assigned to witnesses in anticipation of trial."
- Exemption 7C: The court concludes that defendant correctly "applied this exemption to all of the documents withheld from plaintiff because the identities and personal information about third party individuals were inextricably intertwined with references to [plaintiff] and could not be segregated and disclosed without risking the disclosure of a protected source." The court notes, "this exemption was applied because all third party individuals have an interest in avoiding unwarranted invasions of their personal privacy."
- Exemption 7D: The court explains that the defendant applied this exemption to protect confidential sources, specifically "witnesses and evidence provided to the AUSA" by local law enforcement.
Echols v. Morpho Detection, Inc., No. 13-3162, 2014 WL 953380 (C.D. Cal. Mar. 11, 2014) (Walter, J.)
Re: Request for records concerning plaintiff's background investigation
Disposition: Awarding plaintiff $3,395.00 in attorney's fees
- Attorney Fees, Calculations: The court "finds that Plaintiff is entitled to recover attorneys' fees in the amount of $ 3,395.00." The court "concludes that Plaintiff is not entitled to attorneys' fees for time expended after the TSA produced documents in response to Plaintiff's FOIA request." Additionally, "[t]he Court concludes that Plaintiff is entitled to attorneys' fees for time expended before filing the First Amended Complaint if the work was necessary to secure the result obtained from this litigation." The court finds that "[a]lthough the Court concludes that some of the time expended before filing the First Amended Complaint was necessary, the Court concludes that the time expended on the administrative phase of the dispute was unnecessary." Last, the court "concludes that Plaintiff is not entitled to recover attorneys' fees for the time expended in communicating with state and local police departments as this time was not related to his FOIA claim."
ACLU v. DOJ, No. 12-7412, 2014 WL 956303 (S.D.N.Y. Mar. 11, 2014) (Pauley III, J.)
Re: Request for two FBI memoranda that set forth the FBI's guidance regarding the Supreme Court's decision in United States v. Jones
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment
- Exemption 5, Attorney Work-Product Privilege: The court holds that "[t]he memoranda are privileged 'because they relate to foreseeable litigation arising out of the government's criminal investigations.'" The court does not accept plaintiffs argument that the "work-product privilege applies only when a document is created in response to a specific set of facts and actual claims and that it does not apply to an objective analysis of governing law." The court explains that "'the specific-claim requirement only applies when the documents at issue have been prepared in 'connection with active investigations of potential wrongdoing' and the attorney (or agent thereof) preparing the document acted 'as [a] prosecutor[ ] or investigator[ ] of suspected wrongdoers.''" "'By contrast, a more lenient specificity standard applies when the attorney (or agent thereof) preparing the document acted 'as [a] legal advisor [ ] protecting the [attorney's] clients from the possibility of future litigation.''" Additionally, the court finds that "[t]he memoranda in this case are not agency working law." The court explains that this is so because "DOJ's interpretation of the Supreme Court's decision in Jones has no legal effect; the results of the DOJ's arguments will be borne out in the courts."
- Exemption 7(E): The court finds that "[plaintiff] is correct that the Government's affidavits do not provide sufficient information to determine whether either requirement is met." However, "[a]fter in camera review of [one] memoranda, this Court concludes that [one] memorandum does not fall within Exemption 7(E) because its topic is limited to GPS tracking and it does not reveal any investigative techniques not generally known to the public." However, as stated above, Exemption 5 still applies to this memorandum. However, the court finds that "[another] memorandum contains detailed information concerning various investigative techniques not widely known and therefore falls within Exemption 7(E)."
- Litigation Considerations, Reasonably Segregable Requirements: The court holds that, "[a]fter in camera review, this Court is satisfied that the DOJ has disclosed all reasonably segregable portions of the memoranda."
Stephens v. DOJ, No. 13-0323, 2014 WL 1015803 (D.D.C. Mar. 18, 2014) (Kollar-Kotelly, J.)
Re: Request for investigatory reports and records concerning plaintiff, as well as records concerning confidential sources and witnesses used in plaintiff's criminal case
Disposition: Granting defendant's motion for summary judgment
- Litigation Considerations, Adequacy of Search: The court holds that it "is satisfied that defendant conducted a reasonably adequate search for responsive records and, thus, will enter summary judgment for defendant on the search question." The court notes that "[t]he FBI's declarant has provided a detailed description of the FBI's Central Records System . . . and explained to the Court's satisfaction why that record system is most likely to (and did) contain records responsive to plaintiff's requests."
- Exemption 3: The court relates that "[t]he FBI applied this exemption to withhold information pursuant to the Pen Register Act, 18 U.S.C. § 3123." The court finds that "[p]laintiff has not contested defendant's application of this exemption, which the Court finds properly justified."
- Exemption 7(A): The court finds that "[p]laintiff has not contested the application of this exemption, which the Court finds is properly justified." The court relates that "defendant invoked exemption 7(A) to withhold completely investigatory records pertaining to 'the [unsolved] murder of a cooperating witness who obtained information during the investigation on a multiple of suspects and their potential and/or actual involvement with [the] violent street gang' that is the subject of plaintiff's FOIA request."
- Exemption 7(C): The court "finds that plaintiff has not established what, if any, withheld information responsive to his sweeping request is in the public domain to compel its release." The court explains that "[t]o defeat summary judgment, plaintiff must cite to particular parts of the record to show that the requested information is identical to that in the public domain." The court further explains that "[i]t is not the Court's role to search through a party's exhibits, even those of a pro se litigant, with the hope of finding the alleged matching pieces."
- Exemption 7(D): The court "finds that defendant properly invoked exemption 7(D) to protect confidential source information from disclosure under both express and implied grants of confidentiality." The court holds that "this FOIA record, coupled with plaintiff's conviction for conspiracy to possess with intent to distribute and to distribute cocaine base, presents the very circumstances 'where the violent nature of the crime at issue—homicide, drug trafficking, [and] gang-related crime—"characteristically supports an inference of confidentiality" that a court can generically apply to all informants.'''
- Exemption 7(E): The court notes that "[p]laintiff has not contested this claimed exemption, and the Court finds that it was properly invoked." The court relates that the withheld information consisted of "'non-public FBI computer systems and database search procedures utilized during the investigation of plaintiff, and his affiliation with [the gang],'" "'the operational details and evidence collection procedures during controlled substance buys,'" and "'the locations, investigative assistance, monitoring techniques, types of devices utilized ..., command and control, and ... joint law enforcement arrest coordination plans conducted by the FBI and its law enforcement partners.'"
- Exemption 7(F): The court "finds the FBI's invocation of this exemption, which is consistent with the already approved basis for withholding information under exemption 7(D), properly justified." The court notes that the information withheld consisted of "the identifying information of third-party individuals who provided 'valuable intelligence during the [subject] investigation.'"
- Litigation Considerations, "Reasonable Segregable" Requirements: The court holds that it "is satisfied from its own examination of the Bates-numbered redacted pages and deleted page sheets that such a review occurred and that all reasonably segregable information was disclosed."
Citizens for Responsibility and Ethics in Washington v. DOJ, No. 12-5223, 2014 WL 1284811 (D.C. Cir. Apr. 1, 2014) (Henderson, C. J.)
Re: Request for records concerning investigation of former House of Representatives Majority Leader
Disposition: Reversing and remanding district court's grant of defendant's motion for summary judgment
- Exemption 3: The court holds that defendant's statement "that the requested documents contain information that 'could be used as evidence before a Federal Grand Jury' or 'may be subpoenaed by a Federal Grand Jury' and therefore that 'any such disclosure would clearly violate the secrecy of the Grand Jury proceedings . . . is insufficient" to support withholding information under exemption 3 and Federal Rule of Criminal Procedure 6(e). The court finds that "[a]lthough we do not doubt that some of the requested records may fall under Exemption 3, the DOJ has not yet supplied sufficient information for a court to make that determination."
- Exemption 7(A): The D.C. Circuit holds that "the DOJ has not met its burden to warrant categorical withholding [under Exemption 7(A)]." The court finds that "[t]he first set of proceedings [cited by defendant] does not justify withholding because the sentencing hearings—and appeals—of [three individuals] are no longer 'pending or reasonably anticipated.'" The court relates that "[t]he second type of proceeding [cited by defendant], ongoing at least in August 2011, consists of 'all related criminal investigations.'" Regarding this second type of proceeding, the court finds that "it is not sufficient for the agency to simply assert that disclosure will interfere with enforcement proceedings; 'it must rather demonstrate how disclosure' will do so." Despite its ruling, the court notes that "[o]nce again, we do not hold that the requested information is not exempt." Instead, the court directs that "[o]n remand, the DOJ must clarify whether a related investigation is in fact ongoing and, if so, how the disclosure of documents relating to DeLay would interfere with it."
- Exemption 7(C): The D.C. Circuit holds that "[a]lthough a substantial privacy interest is at stake here, in light of the similarly substantial countervailing public interest, the balance does not characteristically tip in favor of non-disclosure." Concerning the privacy interest at stake, the court finds that "[b]ecause DeLay's public statements confirmed he had been under investigation, the FBI's acknowledgment that it had responsive records would not itself cause harm by confirming that fact, rendering a Glomar response inappropriate." However, the court also finds that "[a]lthough DeLay's action lessened his interest in keeping secret the fact that he was under investigation, he retained a second, distinct privacy interest in the contents of the investigative files." Concerning the public interest at issue, the court finds that "[o]n the other side of the scale sits a weighty public interest in shining a light on the FBI's investigation of major political corruption and the DOJ's ultimate decision not to prosecute a prominent member of the Congress for any involvement he may have had." The court concludes that, while the "balance does not characteristically tip in favor of non-disclosure," "[w]e do not hold that the requested information is not exempt under Exemption 7(C)." "We simply hold that a categorical rule is inappropriate here."
- Exemption 7(D): The D.C. Circuit finds that defendant does not make the required "showing that the source is a confidential one." The court holds that "[t]o invoke Exemption 7(D) on remand, the DOJ must either 'present probative evidence that the source did in fact receive an express grant of confidentiality,'" or "'point to more narrowly defined circumstances that . . . support the inference' of confidentiality."
- Exemption 7(E): The D.C. Circuit holds that defendant's "near-verbatim recitation of the statutory standard is inadequate." The court relates that "[w]e are not told what procedures are at stake." The court directs that "the agency must at least provide some explanation of what procedures are involved and how they would be disclosed."
Brustein & Manasevit v. Dep't of Educ., No. 13-0714, 2014 U.S. Dist. LEXIS 43960 (D.D.C. Mar. 31, 2014) (Jackson, J.)
Re: Request for records concerning DOE computer program, "State and Local Educational Agencies Risk Model," used to identify state and local education agencies at risk of misusing federal funds
Disposition: Denying defendant's motion to dismiss on mootness grounds; granting defendant's motion for summary judgment
- Litigation Considerations, Mootness and Other Grounds for Dismissal: The court holds that "[d]efendant's motion to dismiss Plaintiff's complaint on mootness grounds must be denied." The court notes that "[i]t is undisputed that DOE has produced fully the documents that it had originally withheld." However, the court finds that "the production of documents in the context of a FOIA case does not automatically render the case moot, because, as explained above, the plaintiff may still hold 'a cognizable interest' in having a court determine the adequacy of the agency's search for records." The court holds that "[g]iven Plaintiff's insistence that additional responsive documents must exist and that therefore the released records have not been provided after an adequate search . . . the Court concludes that Plaintiff has a cognizable interest in having this Court determine whether the Defendant's search for records was adequate."
- Litigation Considerations, Adequacy of Search: The court concludes that "because Defendant has carried its burden of showing that it conducted a reasonable and adequate search for responsive records, and because Plaintiff has provided no reason for the Court to conclude otherwise, the Court will grant Defendant's motion and enter summary judgment in its favor." The court finds that "the declarations of [defendant]--which are presumed to have been submitted in good faith and are entitled to great weight--are sufficient to carry Defendant's burden of showing that it conducted 'a search reasonably calculated to uncover all relevant documents[.]'"
Shapiro v. DOJ, No. 13-0729, 2014 WL 1280275 (D.D.C. Mar. 31, 2014) (Friedman, J.)
Re: Request for records concerning Aaron Swartz, recently deceased computer programmer, activist, and doctoral candidate at MIT
Disposition: Granting in part and denying in part defendant's motion for summary judgment; holding parties' cross-motions for summary judgment in abeyance with respect to search issue
- Exemptions 6 and 7(C): The court concludes that defendant properly invoked Exemptions 6 and 7(C). "With respect to [the names of] FBI support personnel," "the Court agrees that the redactions made by the FBI are justified under Exemptions 6 and 7(C)." The court explains that "there is no public interest sufficient to outweigh the privacy interests of [the FBI’s] Special Agents and support personnel." Regarding "the names . . . of third parties who provided information to the FBI, as well as of individuals who were only incidentally mentioned in records responsive to plaintiff's request[,]" " the Court is persuaded that the disclosure of such information would constitute an unwarranted invasion of privacy." Regarding the withholding of "the name of a non-FBI federal employee[,] . . . declarant explains that disclosure of this information could subject the individual to unauthorized injuries and harassment, . . . and the Court agrees."
- Procedural Requirements, Searching for Responsive Records: The court first finds that "plaintiff's request is not confined to records 'of a criminal investigative nature'" and therefore directs defendant "to consider whether responsive records would reasonably reside outside [the system defendant searched], and either perform any additional appropriate searches in databases or records systems outside [the system defendant searched] or explain why additional searches would not be appropriate." The court also finds that "[a]lthough the Court recognizes that a full-text search may not be warranted in every case, it finds the FBI's explanation as to why it was unwarranted here to be lacking." The court therefore "direct[s] the FBI to either conduct a full-text search . . . or provide further explanation as to why such a search is unnecessary in this particular case." Additionally, "[t]he Court . . . is unable to determine whether the FBI's decision to withhold the third-party requests is a reasonable one." Therefore, "[t]he Court will direct the FBI to provide the third-party requests and related documents received after the cut-off date or explain further why its decision to withhold these documents is reasonable." Last, the court notes that "plaintiff raises a number of other challenges to the adequacy of the search, but the Court does not find any of these to have merit."
Vietnam Veterans of Am. Conn. Greater Hartford Chapter 120 v. DHS, No. 10-1972, 2014 WL 1284970 (D. Conn. Mar. 31, 2014) (Thompson, J.)
Re: Records concerning use of personality disorder discharges when separating service members from armed forces
Disposition: Granting in part and denying in part defendant's motion for summary judgment
- Procedural Requirements, Searching for Responsive Records: First, the court addresses plaintiffs' argument that "the searches conducted by the DoD, its components, and the Veterans Health Administration are facially inadequate because the agencies did not construe the plaintiffs' requests to include individual service member files." The court agrees with plaintiffs and finds that plaintiffs' request "makes it clear that the plaintiffs are seeking all records related to the use of personality disorder and adjustment disorder discharges to separate service members." However, the court finds that "'an agency need not respond to a request that is so broad as to impose an unreasonable burden upon the agency, such as one which requires the agency to locate, review, redact, and arrange for inspection a vast quantity of material.'" While plaintiffs, during the course of the litigation “indicated their willingness to narrow their request to a representative sample[,]” the court declines to consider that proposal. "Because the court can only consider the request actually before it—here, the request for all of the individual service members' separation packets—the court concludes that the plaintiffs' original request would have imposed an unreasonable burden on the defendants, and therefore they are not required to respond." The court explains that "defendants argue, and the court agrees, that the court should not consider whether the plaintiffs' proposed narrowed search would be unduly burdensome." The court makes a parallel ruling with respect to plaintiff's request for "[Veterans Administration] files."
- Litigation Considerations, Adequacy of Search: Second, the court addresses the searches themselves, first holding that the declarations submitted by certain components of DoD "do not meet their burden of showing beyond material doubt that the search conducted . . . was adequate." The court holds that various components' declarations "are insufficient" because they "do not describe [all of defendants] filing system[s]," "do not state why [certain] files [searched] were selected to be searched at the exclusion of others," "do not state which search terms ultimately were used," and "do not adequately describe [certain] search[es] to show that [they were] reasonably calculated to find all responsive documents." The court does find that declarations submitted on behalf some of defendant's offices "sufficiently describe the search that was conducted by [those offices] and show beyond material doubt that the search was reasonably calculated to uncover all relevant documents." Additionally, the court notes that the declaration of one component "describes in detail why [that one] component and [its] offices were selected to conduct the searches and averred that based on his experience, no other office was likely to maintain responsive records." The court also notes that this component "describes the kinds of information each office maintains and how such information is stored."
- Litigation Considerations, Mootness and Other Grounds for Dismissal: The court finds that "[b]ecause the court has determined that the plaintiffs' requests for the individual service member files are unduly burdensome and the defendants were not required to respond, the issue of whether search and duplication fees may be assessed is moot."
- Litigation Considerations, Vaughn Index / Declaration: The court holds that defendant's "Vaughn index is sufficient." The court finds that "defendants' Vaughn index identifies each document where information was redacted, the type of document it is, the claimed exemption and the basis for redacting the information pursuant to that exemption."
- Exemption 6: The court holds that defendant's "motion for summary judgment is being granted as to the propriety of the redactions." First, the court states that "in light of the fact that rank, dates of service and place of last assignment could be used by knowledgeable individuals to link the service member to highly sensitive material and it is not apparent how this information would shed light on the defendants' use of personality and adjustment disorder discharges, the court finds that redaction was appropriate." Second, "the court finds that the low-level DoD officials have more than a de minimis privacy interest in their names and identifying information because their employment with the DoD could subject them to harassment or attack." Additionally, the court holds that "[t]he public interest in this case is negligible or nonexistent."
Elec. Frontier Found. v. DHS, No. 12-5580, 2014 WL 1320234 (N.D. Cal. Mar. 31, 2014) (Hamilton, J.)
Re: Request for records concerning U.S. Customs & Border Protection's use of unmanned aircraft systems
Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for summary judgment
- Exemption 7(E): First, the court analyzes defendant's withholding of OAM daily reports and holds that "defendant has adequately shown that location-based information from the OAM Daily Reports was properly withheld under FOIA exemption 7(E)." The court finds that the "location of CBP's drone operations do qualify as 'techniques and procedures,' and thus are entitled to the exemption's protections without any further showing." However, the court finds that "even if the court were to require defendant to show risk of circumvention of the law, the court finds that defendant has done so" by stating that "'[r]eleasing the geographic location of the operation would show where OAM has clearance to fly and one could deduce which areas OAM does not have clearance to fly or does not operate,' which would risk circumvention of the law in those areas." Moreover, the court holds that "the specific locations of CBP drone operations are not generally known" to the public. The court then, "[t]urn[s] to operational information," and similarly finds for defendant. The court holds that "absent any evidence from EFF contradicting the supplemental [defendant] declaration, the court is inclined to find that defendant has indeed satisfied its burden to establish that the requested operational information is not generally known." The court explains that "[j]ust because some piecemeal facts regarding drones' operation may be known, that does not mean that defendant is obligated to disclose all information about drone operations."
Second, the court "address[es] CBP's withholdings from the CONOPS report" and finds "that release of location-based information would disclose law enforcement techniques and procedures, and even if defendant were required to show risk of circumvention of the law, defendant would meet that burden as well." The court explains its second point by stating that "[e]ven if other measures (aside from drones) are used, disclosure of the location of drone operations may still increase the risk of circumvention of the law." The court then analyzes the "withholding of operational information" and makes a similar finding, holding that "release of the operational information—which includes CBP's methods for identifying and analyzing threats, as well as drone capabilities and vulnerabilities—would indeed disclose techniques and procedures for law enforcement, thus entitling the information to protection under exemption 7(E)[,] [a]nd even if the court were to require defendant to show that release of the information would risk circumvention of the law, defendant would also meet its burden under that test." The court additionally "finds that defendant has met its burden to show that the location-based information withheld from the CONOPS report is not generally known."
Procedural Requirements, "Reasonably Segregable" Obligation: The court holds that certain information "can be segregated from exempt information, and should not have been redacted under exemption 7(E)." The court therefore denies in part defendant's motion for summary judgment and grants in part plaintiff's motion for summary judgment.
Williams v. FBI, No. 13-00056, 2014 WL 1320262 (D. Utah Mar. 31, 2014) (Nuffer, J.)
Re: Request for memorandum allegedly distributed in 1993 by then-new Director of FBI, Louis Freeh
Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion to compel additional searches
- Litigation Considerations, Adequacy of Search: The court holds that "[t]he FBI has conducted a search reasonably calculated to recover the document that Williams requested." The court relates that defendant's declarations "establish [defendant's] personal knowledge and supervisory role with respect to [plaintiff's] FOIA request; . . . provide a detailed explanation of the FBI's file system; . . . discuss the manner in which the FBI searched that system, including the various search terms that it employed; . . . discuss the searches it conducted outside of its electronic file system; and provide reasons that additional searches would be both burdensome and unlikely to recover the Freeh Memorandum." The court finds that "the declarations carry the FBI's burden on summary judgment to show that the searches satisfied the agency's FOIA obligations." The court rejects plaintiff's arguments that alternative searches should have been conducted. The court also finds that plaintiff's "allegations are not sufficient to rebut the presumption that the FBI's declarations were submitted in good faith," explaining "[t]hat the FBI has acted in bad faith in the past does not defeat the presumption of good faith in all subsequent cases." The court also rejects plaintiff's argument that "the FBI's declarations include hearsay evidence that is not admissible" and explains that "'FOIA declarants may include statements in their declarations based on information they have obtained in the course of their official duties,' even where those statements include hearsay."