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Brennan Ctr. for Justice at New York Univ. Sch. of Law v. DHS, No. 16-672, 2018 WL 3708661 (S.D.N.Y. Aug. 3, 2018) (Failla, J.)


Brennan Ctr. for Justice at New York Univ. Sch. of Law v. DHS, No. 16-672, 2018 WL 3708661 (S.D.N.Y. Aug. 3, 2018) (Failla, J.)

Re:  Request for records regarding certain initiatives under the rubric "Countering Violent Extremism" that were first established by the White House in 2011

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

  • Litigation Considerations, Adequacy of Search:  The court finds that, "[t]he evidentiary showing provided by the FBI suffices to establish that the search it conducted was 'reasonably calculated' to locate responsive documents."  "[T]he FBI's declarations more than suffice to allow the Court to determine 'that further searches' . . . 'would be unreasonably burdensome,' as the declarations make clear that 'the structure of the agency's file system [would] make[ ] further search difficult." 
  • Exemption 3:  The court notes that, "[p]laintiff's challenge is not whether the statutes qualify under Exemption 3's first prong, but whether the withheld materials qualify under Exemption 3's second prong, i.e., whether 'the materials withheld fall within' the scope of the statutes."  "In challenging the FBI's and [DHS's] withholdings under Exemption 3, plaintiff makes the sweeping assertion that because the Government 'claims that [Countering Violent Extremism (CVE)] is not an intelligence gathering or law enforcement program,' any documents created by defendants in relation to CVE 'cannot logically relate to intelligence sources and methods.'"  "But these statements do not mean that the FBI and [DHS] do not, as a factual matter, maintain records that relate to intelligence sources and methods while also containing information regarding CVE initiatives."  The court finds that, " . . . the record contains nothing confirming such speculation, and even if it did, this would not eliminate the 'substantial weight and due consideration' owed to Government affidavits dealing with intelligence sources or methods."
  • Exemption 1 & Exemption 3:  "Plaintiff argues that the information withheld under Exemptions 1 and 3 has been publicly disclosed previously and thus is not entitled to protection under those exemptions . . . [arguing] the law is clear that Exemptions 1 and 3 'may not be invoked to prevent public disclosure when the government has officially disclosed the specific information being sought.'"  The court finds that, "nothing in the record suggests that any information released to members of the public who were CVE participants was 'as specific as the information' contained in the records at issue."  "Moreover, even if the record demonstrated comparable specificity, the disclosure would only be to a small segment of the public, insufficient to render the disclosure 'public in the sense relevant to the official disclosure doctrine.'"  "In other words, the information never became 'a matter of public record that could be easily discoverable by any interested member of the public.'"
  • Exemption 5, Deliberative Process Privilege:  The court notes that, "[i]n defending the FBI's decision to redact the contents of the PowerPoint Presentation, the Government argues that doing so was permissible under Exemption 5 simply because the PowerPoint Presentation is a draft."  The court finds that, "'that simply designating a document as a draft' does not automatically make it privileged under the deliberative process privilege."  "The FBI's rationale for withholding the contents of the PowerPoint Presentation pursuant to Exemption 5 is thus insufficient, as it fails to detail 'the nature of the specific deliberative process involved,' 'the function and significance of the [PowerPoint Presentation] in that process,' and 'the nature and decisionmaking authority vested in the [PowerPoint Presentation]'s author and recipient.'"
  • Exemption 7(E):  The court finds that, "[FBI's] averments 'demonstrate logically how the release of the requested information might create a risk of circumvention of the law,' and Plaintiff's contestations to the contrary are unpersuasive."  "Plaintiff argues that these withholdings, insofar as they relate to the CVE program, 'are not law enforcement programs and they do not relate to a specific investigation or prosecution.'"  "But Exemption 7(E) does not require withheld materials to be related to such a particular investigation or prosecution."
  • Exemption 7(D):  The court notes that, "[p]laintiff's sole challenge to [DHS's] withholdings . . . is its contention that some of the information withheld 'does not appear to be protection of a source or of information the source provided.'"  The court finds that, "accepting this argument—which cites as an example a single redaction that Plaintiff speculates 'is a conclusion, not information that would reveal a government source' . . . would require the Court to discredit the declaration that [DHS] has submitted in support of its redactions."  "Without a showing of bad faith, which Plaintiff has not so much as suggested, the Court may not so discredit [DHS's] supporting declaration, which provides with reasonable specificity the contours of the information withheld and the risks attendant to its disclosure."
Court Decision Topic(s)
District Court opinions
Exemption 1
Exemption 3
Exemption 5
Exemption 5, Deliberative Process Privilege
Exemption 7(D)
Exemption 7(E)
Litigation Considerations, Adequacy of Search
Updated December 1, 2021