Broward Bulldog, Inc. v. DOJ, No. 16-61289 (S.D. Fla. May 16, 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' second and third motions for summary judgment
- Litigation Considerations, Adequacy of Search: "[T]he Court finds the Government – through detailed declarations – has met its burden of showing the search was adequate and reasonable." The court finds that, "[u]nder prevailing law, the Government has met its burden of showing its search was adequate." "Plaintiffs have failed to meet their burden of showing bad faith by the FBI in performing the searches and do not identify other locations and documents the FBI should search and locate." "[Defendant's] declarations are sufficiently detailed and non-conclusory, describing every step the FBI took to identify responsive records."
- Exemptions 6 & 7(C): First, the court holds that "[m]ost of the names redacted [in one document] under Exemptions 6 and 7(C) already appear in the public domain" and, therefore, the court finds that, on this issue, "summary judgment is denied." The court finds that this occurred in several other documents. Second, the court finds that defendant "does not meet its burden of showing Exemptions 6 and 7(C) are applicable" to the names of two FBI agents and "the name of an individual investigated by the FBI for possible connections to the September 11 attacks." Third, the court finds that "[g]iven the significant public interest in learning about possible suspects involved in the attacks, the FBI has not met its burden of showing Exemptions 6 and 7(C) apply to the selectively redacted names."
- Exemption 7(D): First, "[t]he Court . . . reviewed ["'redactions [which] contain information of a confidential source and techniques used by the FBI to counter terrorism'"] and finds the exemptions justified." The court finds similarly on several other instances. Second, the court relates that "the FBI claims it redacted 'identifying information of individuals who provided information under implied assurances of confidentiality.'" However, the court notes that "[t]he FBI previously released the exact information, in this same document, it now claims must be redacted under Exemption 7(D)." "The Court cannot fathom why the FBI would redact and claim a statutory exemption for information it has already released and which Plaintiffs already possess." Therefore, the court finds that "[s]ummary judgment as to all the redactions in this document is denied."
- Exemptions 1 & 3: "After reviewing the material redacted under Exemptions 1 and 3 . . ., the Court finds the information involves classified material and is therefore properly exempt." The court also finds that certain PowerPoint slides were correctly withheld under the National Security Act.
- Exemption 5, deliberative Process Privilege: The court holds that "[t]he FBI . . . properly invokes Exemption 5 to protect [certain] information regarding the FBI's deliberative process" because "[t]he information redacted under Exemption 5 reveals FBI policies and recommendations, the release of which could 'have an inhibiting effect upon agency policy development.'"
- Exemption 7(E): The court holds that "the Government . . . properly invokes Exemption 7(E) to protect FBI investigative techniques and procedures." The court also finds that the FBI correctly withheld "information to 'protect the location and identity of a[n] FBI unit.'" However, regarding the withholding of a PowerPoint, the court finds that "the FBI has failed to meet its burden in establishing Exemption 7(E) applies to the redacted information." Finally, the court finds that "the FBI has met its burden [to withhold certain file numbers] because it properly explains the redacted block protects sensitive FBI file numbers, the release of which could cause suspects to 'change their pattern of activity to avoid detection' and circumvent the law."