Broward Bulldog, Inc. v. DOJ, No. 16-61289, 2017 WL 746410 (S.D. Fla. Feb. 27, 2017) (Altonaga, J.)

Broward Bulldog, Inc. v. DOJ, No. 16-61289, 2017 WL 746410 (S.D. Fla. Feb. 27, 2017) (Altonaga, J.)

Re: Request for records concerning commission created to investigate September 11, 2001 terrorist attacks

Disposition: Granting in part and denying in part defendants' motion for summary judgment

• Exemptions 6 & 7(C): "The Court agrees with Plaintiffs the FBI has not established it properly invokes Exemptions 6 and 7(C) in [one] Report." The court finds that "[t]he Government has not met its burden of showing disclosure of ["the names of the 'third party' whom it had investigated and the FBI agents and 'support personnel' who investigated the third party"] would constitute an invasion of privacy." "Further, it has not addressed whether the invasion would be severe and whether the public's interest in disclosure outweighs any potential invasion of privacy." "This is problematic given Plaintiffs' contention a significant public interest exists in learning about the FBI's investigation . . . and showing the requested information is likely to advance this public interest." Additionally, the court notes that "some of the redacted names are already in the public domain[.]" The court comes to the same conclusion regarding defendants' withholding of "briefers' names" and "the names of 'a third party who was of investigative interest to the FBI'" in another report at issue, as well as defendants' withholding of other names in another memorandum at issue.
   

• Exemption 7(D): First, the court finds that "the FBI has failed to meet its burden of showing producing [an] unredacted paragraph[, which "provides no identifying information and does not state the names of the individuals who spoke to the FBI or the persons' physical descriptions[,]"] 'could reasonably be expected to disclose the identity of a confidential source.'" However, regarding another paragraph, the court finds that "[defendant] states any redaction under category (b)(7)(D)-1 protects the names of parties who provided the FBI confidential information[]" and, "because this redaction protects identifying information about a confidential source, Exemption 7(D) applies." Additionally, the court finds that "[p]laintiffs have not shown the 'exact information' redacted from [another] paragraph is already in the public domain." "Because the FBI asserts the source spoke with an implied assurance of confidentiality, given the information concerned violent criminal activities that could place the source 'in harm's way should the[ ] [individual's] identit[y] . . . become known[,]'" . . . the Government properly withholds this information under Exemption 7(D)." However, regarding another withholding, the court then finds that while "a local authority may be a confidential source[,]" "[t]he FBI fails to explain there is any identifying information about the local authority's confidential source in the redacted material and does not properly explain how the local authority itself is a confidential source." Regarding a paragraph in another briefing at issue, "[t]he Court finds the entire paragraph is exempt under Exemption 7(D) because the exemption protects both the identity of a confidential source and the 'information furnished by a confidential source[.]'" Regarding information concerning foreign countries withheld in another memorandum at issue, the court finds that "[t]he foreign countries cooperated with the United States to apprehend international terrorists under implied, and in some instances express, assurances of confidentiality."
   

• Exemption 7(E): The court holds that "[a]fter reviewing the . . . Report, the Vaughn index, and [defendants'] Declaration, the Court finds Exemption 7(E) properly invoked on the second and third pages of the Report." "Defendants adequately explain how release of the information could cause circumvention of the law in the realm of international terrorism investigations because the techniques are commonly used." The court comes to the same conclusion regarding defendants' withholdings in another report and another briefing at issue. The court also comes to the same conclusion regarding the withholding of "(1) 'the locations and identities of FBI units . . . squads or divisions . . . involved in the investigations at issue' . . .; (2) information about the 'specific investigative focus' of the investigation . . .; (3) 'investigative techniques and procedures used by the FBI to conduct international terrorism investigations' . . .; (4) 'sensitive case file numbers' . . .; and (5) information regarding 'types and dates of investigations[.]'"
   

• Exemption 5, Deliberative Process Privilege: Regarding information withheld in a report at issue, "[a]fter reviewing the redacted text, the Court agrees with Defendants the information is exempt from disclosure under Exemption 5 because it involves information concerning the FBI's deliberative process." The court similarly finds that "'preliminary recommendations on FBI policies that have not been implemented'" in a memorandum at issue were properly withheld.
   

• Exemptions 1 & 3: Regarding information withheld in one report, "[a]fter conducting a detailed review of [certain] redactions, in conjunction with [defendant's] Declaration, the Court finds the Government has provided ample evidence the redacted material is exempt from disclosure under Exemptions 1 and 3 because of national security concerns." The court relates that "[t]he Government . . . explains [that] it properly invokes Exemption 3 'pursuant to Section 102(A)(i)(2) of the National Security Act of 1947 . . . , as amended by the Intelligence Reform and Terrorism Prevention Act of 2004[.]" Regarding information in another memorandum withheld on the same basis, the court finds that "[t]he Government sufficiently explains why the information relates to intelligence sources and methods, how the information is properly classified in the interest of national security, and why it must remain classified."
   

• Exemption 7(A): The court finds that "the Government's explanation, [that "[t]he FBI invokes the exemption to 'protect specific case information from a pending FBI investigation' the release of which could 'jeopardize the investigation[]'" and "further [that] the 'information is intertwined with other ongoing investigations of known and suspected third party terrorists[,]'" along with the Court’s review of the redacted material, suffices to show Defendants properly invoke Exemption 7(A)."