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ACLU v. FBI, No. C12-03728, 2013 WL 3346845 (N.D. Cal. July 1, 2013) (Illston, J.)

Re: Request to the FBI for access to records concerning Occupy movement Disposition: Denying defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment
  • Searching for Responsive Records:  The court, finds that portions of the search were sufficient, but "orders [defendant] to provide a further supplemental declaration addressing the concerns the Court has found regarding the adequacy of the search."  As to  "a declassified intelligence bulletin that includes a depiction of a poster for the first Occupy Wall Street protest," which, "was not found by [defendant] in [its] search,” the court accepts defendant's explanation that the, "words 'Occupy Wall Street' are part of the image of the poster, and therefore would not be captured in a text search."  However, the court then addresses the fact that defendant, "only found one document responsive to plaintiffs' second category of requests for intelligence bulletins."  The court notes that defendant, "freely admits that it was sharing intelligence information about the Occupy movement with local law enforcement agencies."  The court "finds that the FBI has failed to adequately explain why the search failed to uncover this information."  Last, the court addresses the lack of documentation located as a result of information sharing with local law enforcement agencies.  The court notes that the, "Investigations and Operations Guide . . . requires that when [defendant] shares intelligence with a state or local agency, it must document it on a form FD–999."  The court, "finds that [defendant] has still not adequately addressed the issue of why a form FD–999 was not found in the search, as would be expected when the documents found show that [defendant] was sharing information with [local law enforcement]."
  • Adequacy of the Pleadings:  The court finds that, "[i]t is the government's burden to demonstrate the adequacy of the search, and the Court finds that it has not done so in this case."  The court accepts plaintiff's arguments that defendant, "fails to adequately explain what other databases [defendant] uses to maintain and index its records, and why searches were not conducted of those databases."  The court notes that defendant, "explains in its supplemental declaration that [defendant] maintains 'numerous' automated records systems, and 'many' are indexed to [the index of files organized by subject matter]."  "However, [defendant] does not explain which record systems are not indexed to [the index of files organized by subject matter], and only make[s] conclusory assertions that [the index of files organized by subject matter] is the system 'most likely to contain records responsive to plaintiffs' requests' and that it is 'reasonable to assume' that a search of [the index of files organized by subject matter] is sufficient"  The court acknowledges that, "'[t]here is no requirement that an agency search every record system' in an attempt to locate responsive records, especially if the search will be in vain."  "However, '[w]here the agency's responses raise serious doubts as to the completeness of the search or are for some other reason unsatisfactory, summary judgment in the government's favor would usually be inappropriate.'"  The court continues to state, "'[w]hile [defendant]'s decision to stop its search for responsive files prior to the search of every database in its possession does not render their search unreasonable, [defendant] must provide some basis for the court to evaluate whether its decision to not search additional databases was reasonable.'"
  • Exemption 1:  The court, "finds that the Government's declaration regarding Exemption 1 is inadequate."  The court notes that, "[defendant] withheld in full pursuant to Exemption 1 a single two-page document described as a '[r]eport documenting contact with confidential human source.'"  The court relates that, "[defendant] states that it 'protected the following categories of information specific to intelligence activities and methods because disclosure reasonably could be expected to cause serious damage to the national security: (A) file numbers; (B) detailed intelligence activity information compiled regarding a specific individual or organization of national security interest; and (c) intelligence sources.'"  "It then lists the generalized security risks that may stem from the release of these three categories of information."  The court finds that defendant's statement is "inadequate to sustain its burden in showing the applicability of Exemption 1."  "For example, [defendant] claims that the document contains 'detailed intelligence activities information' that if revealed would disclose the method and capabilities of [the] intelligence activity utilized and 'provide an assessment of the intelligence source penetration of a specific target at a specific time.'" "But [defendant] fails to explain how revealing its intelligence source method would harm national security"  "Similarly, [defendant] states that its 'classified intelligence source' is specific, and if the document is disclosed, it 'reasonably could be expected to reveal the identity of the contributing source.'"  The court finds that, "[t]he national security harms that [defendant] asserts may stem from revealing the source are merely general harms, such as causing other sources to fear that their identities will be revealed."  "However, [defendant] fails to assert how the revelation of this particular source will specifically harm national security."
  • Exemption 7, threshold:  The court finds that defendant did not establish the needed, "''rational nexus' between enforcement of a federal law and the document for which an exemption is claimed.'"  The court notes that, "[defendant] asserts that its law enforcement objective is 'provid[ing] support to state and local law enforcement agencies regarding the 'Occupy' movements across the country.'"  Moreover, defendant, "clarified that its law enforcement basis is also under '[defendant]'s general investigative authority in 28 U.S.C. § 533 and its general authority to collect records in 28 U.S.C. § 534,' and it was investigating 'crimes and terrorism related to the enforcement of federal laws.'"  The court finds that, "[defendant]'s declaration is insufficient to establish a nexus."  "[Defendant] refers only vaguely to 'crimes' and 'federal laws,' but does not cite the specific laws that it was enforcing."
  • Exemption 7(A):  The court finds that, "[defendant]'s declaration is insufficient to allow withholding under Exemption 7(A)."  The court notes that defendant, "is asserting Exemption 7(A) for the withholding of 'both control file numbers of pending FBI investigations and for the withholding of particular pages in full.'"  The court holds that defendant, "is relying upon 'conclusory and generalized allegations of exemptions' when it states only that the information 'could reasonably be expected' to interfere with pending enforcement proceedings without explaining how or why."
  • Exemptions 6 and 7(C):  The court finds that, "[defendant]'s declaration is insufficient to allow withholding under Exemptions 6 and 7(C)."  Defendant, "applied Exemptions 6 and [7(C)] to protect the privacy interest in the names or identifying information of four types of people: (1) FBI agents and support personnel, (2) third parties who 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, but they argue that [defendant] makes only conclusory assertions supporting the last three categories, and that the harm to privacy is outweighed by the public interest in disclosure."  The court holds that, "'[t]he privacy interests of third persons whose names appear in FBI files, the public interest in disclosure, and a proper balancing of the two, will vary depending upon the content of the information and the nature of the attending circumstances.'"  "However, here [defendant] provided no information specific to these third parties that allows the court to weigh the privacy interests against the public interest."
  • Exemption 7(D):  The court finds that defendant's "declaration is insufficient to allow withholding under Exemption 7(D)."  The court determines that defendant, "has failed to provide any probative evidence that there were express or implied assurances of confidentiality."  Defendant's declaration, "has no personal knowledge of the facts."  "While it may be 'evident from the face of the documents' to [declarant] that the sources were expressly assured confidentiality, it is not evident to the Court or to plaintiffs."  "Moreover, [defendant] fails to even make the barest assurances that the identifying information of the confidential sources cannot be segregated."  The court notes that, "[a] 'bald assertion that express assurances [of confidentiality] were given amounts to little more than recitation of the statutory standard, which ... is insufficient.'"
  • Exemption 7(E):  The court finds that defendant's "declaration is insufficient to allow withholding under Exemption 7(E)."  First, the court finds that defendant's "conclusory assertion that, even though the technique is generally known, the specifics on how and when the technique is used is not generally known, is not adequate."  The court "finds that [defendant]'s assertion that the public is unaware of the specifics of how and when a technique is employed is not enough to sustain a withholding under Exemption 7(E)."  Second, concerning unit titles, the court finds that, "[defendant] has not sufficiently met its burden in this case."  "[A]lthough [defendant] states that a unit title 'may' reveal an investigative technique, and proffered a hypothetical example, [defendant] has not shown that any of the unit titles in the withheld documents are unknown by the public."  Moreover, "[defendant]'s 'mosaic' theory fails to delineate how, in this case, a technique unknown by the public will be revealed."  The court notes that, "[t]he mere application of a known technique to a particular set of facts is not enough to withhold information under Exemption 7(E)."
  • Responsive Records:  Regarding "'address lists and handling instructions'" which were redacted as non-responsive, the court finds that, "[g]iven the purpose of FOIA and the strong presumption in favor of disclosure, the Court will review the non-responsive redactions . . . and will only uphold redactions if it is utterly convinced that they do not shed light on, amplify, or enlarge upon that responsive information."  The court states that, "the government . . .  'has no obligation to produce information that is not responsive to a FOIA request,' and therefore the redaction of information outside the scope of a request is proper."  "However, 'the agency should err on the side of liberally construing what material falls within the scope of the request' and should release any information 'which relates to the subject of the request or which in any sense sheds light on, amplifies, or enlarges upon that material which is found in the same documents.'"
Court Decision Topic(s)
District Court opinions
Exemption 1
Exemption 6
Exemption 7
Exemption 7(A)
Exemption 7(C)
Exemption 7(D)
Exemption 7(E)
Updated August 6, 2014