Argus Leader Media v. USDA, No. 11-04121, 2020 WL 1557295 (D.S.D. Apr. 1, 2020) (Schreier, J.)

Webster v. DOJ, No. 02-603, 2020 WL 1536303 (D.D.C. Mar. 31, 2020) (Contreras, J.)

Re:  Request for records concerning deceased plaintiff

Disposition:  Granting defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he Court agrees with Defendant that the steps outlined in [defendant's] Declaration represent 'a good-faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'"  First, the court notes that "[a]s Defendant notes, the FBI has conducted 'multiple searches' during the course of the litigation."  "However, Defendant sensibly suggests that the Court focus on the search conducted after the 2011 reprocessing order, when the FBI conducted a fresh round of searches for documents responsive to Plaintiffs' request."  The court then relates that "the FBI searched its Central Records System . . . where the agency 'indexes information about individuals, organizations, events, and other subjects of investigative interest for future retrieval.'"  "As search terms, the FBI used thirty-five variations of [the deceased plaintiff's] name."  Also, the court finds that "[t]o the extent that Plaintiffs are suggesting that the FBI erred by failing to properly coordinate with another agency or search another agency's records, they are mistaken."  "FOIA requests are properly directed to a particular agency or component."  "And the recipiendst of a request is only responsible for searching records under its control."
   
• Exemption 1:  "[T]he Court concludes that [defendant's] declarations describe, with reasonable detail, how the information withheld by the FBI and CIA logically falls under Exemption 1."  First, "Defendant cites [the FBI's] declaration to explain how certain material withheld by the FBI meets the requirements of E.O. 13,526 and, by extension, Exemption 1."  "As a classifying authority, [the FBI's declarant] determined that the substantive information withheld was properly classified, as disclosure could reveal intelligence sources or methods and lead to diplomatic or economic retaliation against the United States."  "He also confirms that the procedural requirements of E.O. 13,256 were observed – for example, that each document was marked and stamped with the appropriate classification designation."  "Defendant also explains that the FBI referred some records to the CIA, which also determined . . . that some information should be withheld pursuant to Exemption 1."  "Like [the FBI's] declaration, [the CIA's declarant] explains how the withheld information meets the substantive and procedural requirements of E.O. 13,526 and, thus, Exemption 1."  "Specifically, [the CIA] avers that the information withheld was properly classified because it concerned intelligence activities and its disclosure could reasonably be expected to result in damage to national security."  "According to [the CIA], some of the withheld pages contain detailed information about human sources, while the disclosure of other material could reasonably be expected to reveal an intelligence method that is still in active use by the CIA."
   
• Exemption 3:  "The Court finds that the FBI and IRS have reasonably demonstrated that the withheld information logically falls within Exemption 3."  First, the court finds that defendant "withheld certain information pursuant to Section 102A(i)(1) of the National Security Act of 1947 (["NSA"]) as amended, 50 U.S.C. § 3024(i)(1)."  The court relates that "[defendant] avers that certain information qualified for withholding under the NSA, and thus under Exemption 3, based on his determination that 'the FBI's intelligence sources and methods would be revealed if any of the withheld information is disclosed to Plaintiffs.'"  "Similarly, as Defendant explains, the CIA also invoked the NSA to withhold certain information under Exemption 3."  "[The CIA] explains that certain information (which was also protected by Exemption 1, as discussed above) would reveal 'specific sources and methods of intelligence collection' and 'how the CIA controls dissemination of classified information.'"  "While [defendant's] declarations lack extensive detail, the Court finds that they do adequately assert that the information withheld qualifies under Exemption 3."
  
  Additionally, the court finds that "[t]he Internal Revenue Service (IRS) also requested that the FBI withhold a document under Exemption 3 and 6103 of the Internal Revenue Code (IRC), 26 U.S.C. § 6103(a)."  "According to [defendant's] declaration, the IRS advised that the document at issue was [the deceased defendant's] return information, which the Tax Code treats as confidential."
   
• Exemption 7, Threshold:  The court finds that "[a]s [defendant] explains, the '[t]he investigative files at issue were compiled during the FBI's criminal investigation of the subject's and other third parties' crimes involving the internal security of the United States; domestic terrorism threats; and foreign counterintelligence.'"  "Based on that representation, the Court agrees that records at issue meet this threshold standard."
   
• Exemption 7(C):  The court holds that defendant appropriately withheld certain information pursuant to Exemption 7(C).  The court relates that "the FBI withheld the names and/or identifying data of (1) 'third parties who were interviewed and/or provided information to the FBI during the course of its investigation of the subject and other third parties,' . . . 'state and local law enforcement personnel' who were 'aid[ing] the FBI' in the relevant investigative activities, . . . 'third parties who were merely mentioned in the criminal investigative files responsive to Plaintiffs' request,' . . . (4) 'third parties who were of investigative interest to the FBI,' . . . and (5) 'FBI Special Agents . . .' and 'FBI support employees' who were involved with or handled tasks related to the investigations . . . ."  "Courts have found these categories of information as worthy of protection under Exemption 7(C)."  The court relates that "[defendant] also explains why these recognized privacy interests outweigh any interest in disclosure."  "And in this round of summary judgment briefing, Plaintiffs have not articulated any public interest that would be furthered by such disclosures."  "In earlier briefing, however, [plaintiff] did identify some plausible interests."  "Based on the arguments raised in the previous round of briefing and its own assessment, the Court finds that the privacy interests identified by the government outweigh any plausible public interest in the specific information withheld under Exemption 7(C)."  "[Plaintiff] is correct, of course, that revealing the names of interviewees, investigation targets, and FBI personnel would shed some marginal light on how the FBI conducted its operations."  "But that is true of any request to disclose these kinds of information, and courts have repeatedly recognized that such exemptions can be justified."  "In the absence of more particular reasons why the disclosure of names and identifying information would shed light on the government's (mis)conduct, the Court is unable to conclude that disclosure is warranted."
   
• Exemption 7(D):  "The Court finds that Defendant has reasonably demonstrated how [certain] kinds of information logically falls within Exemption 7(D)."  "First, the names and identifying information of third parties who received express assurances of confidentiality, as well as the information these third parties disclosed, falls well with the ambit of the exception."  "Similarly, the symbol numbers and file numbers associated with particular confidential sources has been repeatedly recognized as falling under Exemption 7(D)."  "And lastly, courts have recognized that information provided confidentially by local law enforcement agencies can be lawfully withheld."
   
• Exemption 7(E):  "[T]he Court finds that the Defendant's representations sufficiently demonstrate that the withheld information logically falls within Exemption 7(E)."  The court relates that this information "included 'information pertaining to the types and dates of investigations referenced in the records at issue,' . . . as well as information concerning 'coordination with [other government agencies] pertaining to the records at issue,' . . . ."  "Disclosure of this information would, according to [defendant], allow criminals to 'predict FBI investigative reactions, adjust their behavior accordingly, and avoid detection and/or disruption by FBI investigative activities,' . . . and 'to structure their behavior to avoid investigative scrutiny by additional government agencies' . . . ."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "[T]he Court is satisfied that Defendant has met the segregrability requirement."  The court finds that "the two Vaughn indices describe each document that was withheld in part or in full and describe the specific kind of exemptions asserted as to each (and when appropriate, designate a specific subcategory of information within the claimed exemption)."  "In [the FBI's declaration], [the FBI] also separately avers that '[e]very effort was made to provide Plaintiffs . . . with all reasonably segregable, non-exempt information in the responsive records' . . . ."  "[The FBI] reports that [it] conducted a page-by-page review and that any further release of information would 'trigger[ ] foreseeable harm' to one or more interests protected by the cited FOIA exemptions . . . ."  The court notes that the CIA found similarly.