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Al-Turki v. DOJ, No. 14-00802, 2016 WL 1258581 (D. Colo. Mar. 30, 2016) (Daniel, S.D.J.)

Wednesday, March 30, 2016

Al-Turki v. DOJ, No. 14-00802, 2016 WL 1258581 (D. Colo. Mar. 30, 2016) (Daniel, S.D.J.)

Re: Request for records concerning plaintiff

Disposition: Granting in part, denying in part, and denying in moot as part defendant's motion for summary judgment

  • Exemption 1:  The court "find[s] that Defendant has met its burden of showing that Exemption 1 applies to the information withheld under this exemption because the FBI has shown through [its] Declaration that each of the requirements of E.O. 13526 § 1.1(a) has been met."  The court finds that the "FBI declarant . . . is an original classification authority," "[the declarant] determined that this classified information is owned by, was produced by or for, and/or is under the control of the United States Government," "[the delclarant] determined that the information falls within § 1.4(c), intelligence activities, sources, and methods," and the "FBI declarant . . . described how unauthorized disclosure of the information for which Defendant asserted this exemption could reasonably be expected to result in damage to the national security."  Additionally, the court finds that "[defendant's declarant] made certain that: (a) each document was marked as required and stamped with the proper classification designation; (b) each document was marked to indicate clearly which portions are classified, which portions are exempt from declassification as set forth in E.O. 13526, § 1.5 (b), and which portions are unclassified; (c) the prohibitions and limitations on classification specified in E.O. 13526, § 1.7, were adhered to; (d) the declassification policies set forth in E.O. 13526, §§ 3.1 and 3.3 were followed; and (e) any reasonably segregable portions of these classified documents that did not meet the standards for classification under E.O. 13526 were declassified and marked for release, unless withholding was otherwise warranted under applicable law."
  • Exemption 3:  First, the court holds that "[d]efendant's Motion for Summary Judgment is granted as to [the use of the National Security Act]."  The court finds that "Section 1024(i)(1) of the NSA . . . qualifies as a withholding statute under Exemption 3 and meets the first requirement for the exemption."  The court then "accord[s] substantial weight to [defendant's] determination that the exempted material at issue falls within the scope of the NSA, and find[s] that Defendant has met its burden of showing that the documents/information withheld under this exemption were properly withheld."  Second, the court "den[ies] as moot the Motion for Summary Judgment to the extent it relies on [the Child Victims' and Child Witnesses' Rights Act, 18 U.S.C. § 3509(d)(1)]" because "[d]efendant withdrew its reliance on this in its Reply."
  • Exemption 5, Attorney-Client Privilege:  The court "find[s] that Defendant's Motion for Summary Judgment should also be granted as to the withholding of information . . . based on Exemption 5."  The court "accord[s] substantial weight to [defendant's] determination that the exempted material at issue meets the requirements of the attorney-client privilege and is exempt from release under FOIA because the material was made in confidence, not shared outside of the attorney-client relationship, and made for the purpose of securing legal assistance or advice in relation to the criminal case against Plaintiff."
  • Exemptions 6 and 7(C):  Generally, the court "find[s] that Defendant's Motion for Summary Judgment should be granted to the extent information was withheld under . . . Exemptions 6 and 7(C)."  First, the court finds the withholding of the "names of FBI SAs and support staff" appropriate.  The court "give[s] credence to [defendant's] statements that the documents, if produced, would constitute a clearly unwarranted invasion of personal privacy or could reasonably be expected to constitute an unwarranted invasion of personal privacy as to FBI SAs and support personnel," and also "to Defendant's balancing of the private interest of the FBI SAs and their support staff with the public interest in disclosure."  "Plaintiff has not demonstrated or even argued that the release of the withheld information 'would serve the "core purpose of FOIA."'"  Moreover, regarding plaintiff's waiver argument, the court finds that "[p]laintiff cites no authority for the proposition that the government can waive a private interest protected by FOIA such as those established here."  Second, the court "find[s] that Defendant has met its burden of showing the applicability of Exemptions 6 and 7(C) with respect to the documents/information relating to third parties."  The court finds that third parties "have a 'strong interest' in not having their names and information revealed, 'even if they are not the subject of the investigation'" and that "this information would not enlighten the public on how the FBI conducts its internal operations and investigations."  The court also "reject[s] Plaintiff's waiver argument for the same reasons discussed above in connection with the FBI SAs and their support personnel."  Third, the court finds for similar reasons that the names of third parties merely mentioned in the documents, third parties who provided information to the FBI, and third party victims were correctly withheld.  Fourth, the court finds that the names of non-FBI federal, state, and local government personnel are also withholdable.   The court finds that "[d]efendant has shown a private interest regarding the names and identifying information of state, local and other law enforcement personnel and that the FBI balanced the private interest against the public interest in disclosure and found no ascertainable public interest."

However, regarding one document, the court finds that it "do[es] not have sufficient information to determine whether there is information in this document that should be disclosed" and, therefore, "den[ies] Defendant's Motion for Summary Judgment without prejudice."  Additionally, regarding another document, the court finds that it was "unable to determine whether there are segregable portions of this document that should be disclosed despite the applicability of th[ese] exemption[s]."

  • Exemption 7(A):  The court "find[s] that Defendant has shown that it properly relied on Exemption 7(A) to withhold documents that while not directly related to ongoing investigations, contain information that is intertwined with or related to other ongoing law enforcement proceedings and could reasonably be expected to interfere with such proceedings."  The court relates that "[d]efendant has shown through [its] Declarations that it is withholding documents/information on the basis of a current investigation."  "That investigation is described in the ex parte, in camera Declaration that was reviewed by [the court]."  Additionally, the court finds that "[d]efendant does admit that some of the information it protected under Exemption 7(A) may stretch back ten years, but Exemption 7(A) has been held to apply to long-term investigations."  Additionally, the court finds that "[d]efendant's Motion for Summary Judgment is granted to the extent Defendant claims that documents/information related to the ongoing investigation are protected by Exemption 7(A)."  The court explains that "[d]efendant has shown that the records or information in all three categories were compiled by the FBI for law enforcement purposes" and that "the release of the requested documents could, among other things, lead to harm to confidential sources, tip off targets of investigation as to law enforcement interest in them, disclose identifies of foreign government agencies cooperating with the FBI, disclose investigative capabilities, and reveal the scope and nature of ongoing investigations."
  • Exemption 7(D):  First, the court "find[s] that Defendant has shown through [its] Declaration that the public disclosure of confidential source file numbers and identifying data concerning source symbol numbered informants could reasonably be expected to disclose the identity of a confidential source."

"However, [regarding redactions on two pages,] [the court] do[es] not have sufficient information to ascertain whether Plaintiff's arguments that the redactions on [those] pages relate to persons whose identities have already been disclosed and who thus are not or should not be considered confidential sources whose information needs to be protected."  The court also "agree[s] with Plaintiff that Defendant has not provided adequate information for [the court] to be able to find that Exemption 7(D) applies with respect to the alleged confidential sources at issue."  The court explains that "[d]efendant did not provide a source-by-source basis that would allow [the court] to infer that the sources furnished information under circumstances where an implied assurance of confidentiality could be inferred."  "While Defendant argues in its reply brief that the nature of Plaintiff's crime allows the court to infer confidentiality, [the court is] unable to make this determination without knowing the sources' relation to the crime and what risks those source(s) might face were his/her identity disclosed."

  • Exemption 7(E):  First, the court "find[s] that the disclosure of sensitive FBI file numbers could disclose techniques or procedures for law enforcement investigations."  "Specifically, [the court] believe[s] that the assignment of sensitive file numbers could be characterized as a procedure that the FBI uses for investigative purposes" and "that the nature of the file numbers often reveals the size and scope of the files, thus revealing the scope and size of the programs to which these files relate."  Second, the court finds appropriate the withholding of "[t]he location and identity of FBI and/or joint units [because they] certainly relate to law enforcement purposes, and there is nothing in the record to suggest that this information is known to the general public."  "Moreover, [the court] give[s] credence to [defendant's] Declaration asserting that production of information related to the location and identity of FBI and/or joint units would disclose techniques and procedures for law enforcement investigations or prosecutions."  Third, the court agrees with the withholding of "how and from where the FBI collects information and the methodologies employed to analyze it once collected."  The court also finds that "[d]efendant is correct that [']techniques and procedures may be exempt even if they are known to the public to some extent if disclosure of the circumstances of their use could lessen their effectiveness.'"

However, the court finds that "[d]efendant's Motion for Summary Judgment is . . . denied without prejudice as to" the dates and types of investigations.  The court explains that it is "unable to determine how the section of [the] document where Exemption 7(E) is cited relates to or would reveal the date or type of investigation."

  • Procedural Requirements, Searching for Responsive Records:  The court "reject[s] Plaintiff's argument that the FBI failed to conduct a reasonable search."  The court finds that defendant searched its Central Records System after determining "that the CRS is the only place where documents responsive to Plaintiff's request would reasonably be found."  The court finds that "[n]o evidence has been presented to the contrary."  The court also finds that defendant conducted "an around-the-clock search meaning each name is searched in every position, i.e., first, middle, and last."
District Court
Exemption 1
Exemption 3
Exemption 5
Exemption 6
Exemption 7A
Exemption 7C
Exemption 7D
Exemption 7E
Updated May 19, 2016