Abdeljabbar v. ATF, No. 13-0330, 2014 WL 6478794 (D.D.C. Nov. 20, 2014) (Walton, J.)

Abdeljabbar v. ATF, No. 13-0330, 2014 WL 6478794 (D.D.C. Nov. 20, 2014) (Walton, J.)

Re: Request for records concerning plaintiff's criminal case

Disposition: Granting defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  First, "the Court concludes that ATF's search was adequate."  "The ATF searched . . . its centralized case management system, . . . an interagency communications system, and the records of the field office responsible for investigating the plaintiff's case—methods which it contends were 'reasonably expected to produce the information requested.'"  "Based upon these representations, the ATF's declaration sets forth sufficient factual detail of the methods it utilized in conducting its search for documents responsive to the plaintiff's request."  Second, "the Court concludes that the EOUSA's search was adequate."  The court finds that "EOUSA's declaration 'sets forth in reasonable detail, the steps taken by [the EOUSA] in finding records responsive to [the] [p]laintiff's request.'"  Third, "the Court concludes that the FBI's search was adequate."  The court finds that "[t]he FBI's declaration sets forth sufficient factual detail of the methods it utilized in conducting a search for documents responsive to the plaintiff's request" and "[t]he plaintiff has not disputed the FBI's assertion that it 'performed a search using methods which can be reasonably expected to produce the information requested.'"
   
• Exemption 1:  The court holds that "[t]he FBI has offered sufficient factual detail for the Court to conclude that the category of information withheld under this Exemption may be classified according to Executive Order 13526, and that the specific documents in question were properly classified pursuant to that Order."  The court finds that "[t]he Section Chief of the Record/Information Dissemination Section of the FBI 'independently examined the information withheld from [the] plaintiff pursuant to FOIA Exemption [ (b) (1) ] ... [and] determined that the classified information continues to warrant classification ... pursuant to [Executive Order 13526].'"  "The Section Chief is an 'original classification authority' who examined the information 'in light of the body of information available to [him] concerning the national defense and foreign relations of the United States.'"
   
• Exemption 3:  First, regarding ATF, "the Court finds that the ATF has offered sufficient factual detail to conclude that it properly withheld this information under this exemption" coupled with "Rule 6(e) [which] provides 'broad' secrecy to 'matters occurring before the grand jury.'"  Additionally, regarding ATF's use of "the Consolidated and Further Continuing Appropriations Act of 2012 . . ., Public Law 112–55," "the Court concludes that the 2005 and 2008 appropriations language continues to satisfy the requirements of FOIA's Exemption (b)(3), and may be invoked by the ATF to withhold the trace information."  "The plaintiff offers no justification for this Court to find otherwise."  "Accordingly, the Court concludes that the ATF properly withheld the information pursuant to Exemption (b)(3)."  Second, regarding EOUSA, the court finds that EOUSA correctly "withheld grand jury information from its response to the plaintiff's FOIA request."
   
• Exemption 5, Attorney Work-Product Privilege:  The court holds that "[i]n light of the EOUSA's representations that these 'records were prepared by or at the request or direction of an attorney, and made in anticipation of or during litigation,'" . . . "the documents in question fall within the attorney–work product privilege and are exempt from disclosure."  The court explains that "EOUSA withheld 'trial preparation, trial strategy, interpretations, and personal evaluations and opinions pertinent to [the] plaintiff's criminal case,' . . . as well as 'drafts of an indictment, emails between attorneys, drafts of a prosecutorial memorandum, and all handwritten pages ... written by attorneys preparing the case.'"
   
• Exemption 7, Threshold:  Based on the work performed by ATF, the FBI and EOUSA, and "the fact that the plaintiff seeks 'records related to his own criminal prosecution,'" "the Court finds that the EOUSA has demonstrated a 'rational nexus' between the plaintiff's criminal investigation and the documents withheld."
   
• Exemption 7(C):  First, "the Court concludes that the ATF properly withheld [certain] information."  "The Court agrees with the ATF's conclusion that disclosure of this information regarding its personnel may hinder the ATF's ability to conduct ongoing investigations, may lead to unwarranted harassment, and may otherwise cause embarrassment and be an invasion of privacy as contemplated by the Exemption" and "[t]hese concerns significantly outweigh what little benefit the public may gain with this information as to its understanding of the ATF's operations."  Second, "the Court concludes that the EOUSA properly asserted Exemption (b)(7)(C)."  The court relates that "EOUSA withheld, pursuant to Exemption (b)(7)(C), records pertaining to third party individuals" after "determin[ing] that 'there is no countervailing public interest in the release of this privacy–protected information, because its dissemination would not help explain government activities and operations.'"  Third, "the Court concludes that the FBI properly asserted Exemption (b)(7)(C)."  Regarding information concerning FBI employees and third parties, "the FBI determined that 'the personal privacy interests in non-disclosure outweighed the public [interest] in disclosure.'"
   
• Exemption 7(D):  "[T]he Court concludes that the EOUSA [and the FBI] properly asserted Exemption (b)(7)(D) for this information."  The court notes that "[a]ccording to the EOUSA, '[i]f this information were released, individual informants would likely become targets of harassment or other forms of reprisal.'"  Additionally, the court notes that "the FBI withheld 'the names, identifying information, and/or information provided by third parties under an implied assurance of confidentiality.'"
   
• Exemption 7(E):  "[T]he Court concludes that the ATF properly withheld pursuant to Exemption (b)(7)(E) the operational plans regarding the plaintiff's arrest."  The court relates that "ATF contends that disclosure of operational plans would permit individuals to circumvent the law because they 'outline how law enforcement plans on conducting a law enforcement action ... [and] include contingency plans.'"  Additionally, "the Court concludes that the FBI properly withheld pursuant to Exemption (b)(7)(E) information pertaining to its investigatory strategies."  The court explains that "the FBI withheld its 'strategy for using a particular type of evidence gathered during its investigation' because '[r]evealing the utility of this type of information to the FBI would essentially instruct criminals on how best to maintain operational security when conducting their criminal activities.'"