Associated Press v. FBI, No. 16-1850, 2017 WL 4341532 (D.D.C. Sept. 30, 2017) (Chutkan, J.)

Associated Press v. FBI, No. 16-1850, 2017 WL 4341532 (D.D.C. Sept. 30, 2017) (Chutkan, J.)

Re:  Request for records concerning agreement with technology vendor who assisted FBI in unlocking smartphone of suspected terrorist

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 1:  The court relates that the parties do not dispute that "[there] is an original classification authority and that the withheld information is under the control of the United States Government."  Also, that "the identity of the vendor and the cost of the tool relate to intelligence activities or intelligence sources or methods[.]"  "The parties' dispute involves the fourth requirement, which permits withholding if the information requested could reasonably be expected to cause an identifiable and describable degree of harm to national security if released."  "The court . . . finds that the FBI has shown that the release of the vendor's identity could be reasonably expected to cause harm to national security interests by limiting the FBI's present and future ability to gain access to suspected terrorists' phones."  Also, "[t]he agency has provided a logical and plausible affidavit that adequately demonstrates how the release of the purchase price could cause a reasonably expected risk of harm to national security[]" because it "would allow adversaries to determine its usefulness and assess its nature, and would reveal where the FBI concentrates its resources in national security investigations."
   
• Exemption 3:  First, the court holds that "the FBI properly invoked Exemption 3 with respect to the vendor's identity."  The court explains that "[t]he FBI argues that release of the vendor's identity relates to an intelligence source and method because it could lead to information about the tool[]" and "[t]he tool allows the FBI to access intelligence information on suspects' phones, therefore logically serving as both a source of intelligence information and method for obtaining intelligence information."  Second, the court holds that "the FBI properly invoked Exemption 3 with respect to the tool's purchase price."  The court explains that "[t]he FBI argues that information regarding the purchase price relates to an intelligence source and method because it could lead to information about the iPhone hacking tool[.]"  The court relates that "the FBI relies on section 102A(i)(1) of the National Security Act of 1947 . . . which protects intelligence sources and methods from unauthorized disclosure."
   
• Exemption 7(E):  First, the court holds that "the FBI properly invoked Exemption 7(E) with respect to the vendor's identity[]" because "the FBI contends that disclosing the vendor's identity will allow hostile entities to discover how the iPhone hacking tool works and then use that information to circumvent the technology[.]"  Second, the court holds that "the FBI properly invoked Exemption 7(E) with respect to the purchase price."  The court explains that "[t]he FBI's posits that if the total price paid for the iPhone hacking tool were revealed, adversaries would be able to assess the nature of the tool and determine its likely capabilities."
   
• Waiver:  In response to plaintiff's waiver arguments centered on testimony by former FBI Director Comey, the court finds that "Comey provided only [] general[ities] . . ., rather than the specific[s]."
   
• Exemption 4:  "[T]he court finds that disclosure of the purchase price (1) will not impair the FBI's ability to obtain similar information in the future, and (2) is not likely to cause substantial competitive harm to the vendor, because the vendor does not face actual competition, and even if it did, would not likely suffer competitive injury from disclosure."  "Accordingly, the purchase price is not confidential within the meaning of Exemption 4, and the FBI’s application of the exemption to the purchase price was improper."  The court finds that "'[w]here the government obtains information involuntarily, disclosure does not impair the government's ability to obtain similar information in the future.'"  Also, the court finds that "there is no evidence that any actual competition exists over current or future contracts," and "the bidding process for this particular contract was unique and unlikely to be replicated."