Cabezas v. FBI, No. 19-145, 2022 WL 898789 (D.D.C. Mar. 28, 2022) (Nichols, J.)

Cabezas v. FBI, No. 19-145, 2022 WL 898789 (D.D.C. Mar. 28, 2022) (Nichols, J.)

Re:  Records related to investigation of plaintiff

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

• Litigation Considerations, Adequacy of Search:  "[Plaintiff] contends that the 'CRS search should only be a beginning, not an end, and in this case, [and that the Bureau] has not indicated it completed more than a 'targeted search' for the missing records.'"  "And he supports this contention with the argument that the Bureau failed to produce numerous records he obtained through criminal discovery."  "The Bureau, however, responded to this argument by conducting targeted searches of the Bureau's Tampa Field Office, which led to additional disclosures."  "What's more, [plaintiff] appears to equate requests made under FOIA and the Privacy Act with discovery in criminal and habeas proceedings."  "But such requests do not serve as substitutes for discovery in criminal cases or in habeas proceedings."  The U.S. Attorney's Office has certain material and information that falls under its purview, which agencies like the Bureau have little to no control over."  "All this leads to the conclusion that [Plaintiff's] assertion that the Bureau did not conduct a reasonable search in good faith must fail because the Bureau's initial search and its supplemental searches were adequate under the lawy." 
   
• Exemption 5, Deliberative Process Privilege:  "In particular, the withheld material includes suggestions regarding the Bureau's 'operational strategies, as well as . . . communications with an Assistant United States Attorney who was consulted and provided advice regarding investigative strategy related to [plaintiff's] case.'"  "The Bureau has sufficiently demonstrated that the withheld material is both pre-decisional and deliberative."  "As reflected in the . . . declarations, the withheld material involved portions of operational plans and investigative suggestions."  "That material is 'pre-decisional in that it does not reflect final agency decisions.'"  "What's more, 'the investigative suggestions offered in the operational plan were memorialized prior to agency action in the official operation and do not necessarily reflect final operational decisions.'"  "In other words, the operational plans 'were contingent on predicted scenarios that were only speculated to potentially occur.'"  "The Court concludes that the material withheld pursuant to the deliberative process privilege was both pre-decisional and deliberative." 
  
  "The Bureau has demonstrated that harm is reasonably foreseeable in that release of the withheld material would cast a chilling effect on the willingness of employees to share raw, unrefined ideas and candid feedback should they know it could become subject to public disclosure."  "In particular, release of the withheld material would harm future Bureau investigations by exposing the Bureau's 'internal investigative plans and strategies.'"  "Release could also 'result in hesitancy [among Bureau employees to] participate fully in [future] deliberations.'"  "But if that were not enough, the Bureau withheld only 'portions of the operational plan' containing 'legal analysis of the validity of the [Bureau's] actions within [plaintiff's] criminal case.'"
   
• Exemption 5, Attorney Client-Privilege:  "The Bureau has invoked the attorney-client privilege 'to protect privileged communications between its investigators and the Department of Justice.'"  "In particular, the Bureau asserted attorney-client privilege to protect confidential communications 'between [the Bureau] seeking legal advice from a professional legal adviser in his/her capacity as a lawyer.'"  "Disclosure of the legal advice at issue would 'disrupt the adversarial process of litigation by providing access to information related to the government's potential legal strategies.'"  "Disclosure could also dissuade attorneys from sharing all relevant material and from speaking frankly."  "The Court concludes that the Bureau's withholdings fall within the attorney-client privilege and the FOIA exemption."
   
• Exemption 7(C):  "Here, the Bureau contends that 'each piece of information was scrutinized to determine the nature and strength of the privacy interest of every individual whose name and/or identifying information appears in the documents at issue.'"  "Based on that scrutiny, the Bureau withheld names and identifying information of Bureau officials, staff, third parties, informants, and persons of investigative interest."  "Some law enforcement personnel names may have been public, but the Bureau 'continues to assert that release of these employees' names within the specific investigative context of these records would constitute an unwarranted invasion of privacy and would put these employees at unnecessary risk of retaliation and potential violence.'"  "Associating a particular employee with a particular investigation 'could lead to harassment, targeting, or retaliation against those employees by criminals who may hold a grudge due to that specific investigative action.'"  "What's more, [plaintiff] alludes to government misconduct but he fails to identify any specific misconduct."  "As a result, the Bureau's privacy interest in not disclosing names and identifying information outweighs [plaintiff's] claim of public interest."
   
• Exemption 7(E):  "The Bureau withheld records under Exemption 7(E) in a number of categories, including: (1) undercover operations, (2) tactical information contained in operational plans, and (3) database information and search results."  "Releasing details about the Bureau's undercover investigative techniques and the Bureau's operational security methods runs the risk of undercutting effective undercover operations."  "In other words, 'disclosure would decrease the efficacy of the [Bureau's] undercover techniques, in turn allowing future criminals to more easily evade detection by law enforcement.'"  "The Court concludes that the Bureau withheld such information in conformity with Exemption 7(E)." 
  
  "The operational details included within the plan covered the gambit, such as the 'placement of personnel, administrative and equipment information, deadly force authorization information, targets background information, briefing locations, and legal consultations with the United States Attorney's Office.'"  "Releasing the 'operational plan would allow criminals to extrapolate the [Bureau's] methods and priorities to other operations and enterprises' and would enable them to gain valuable insight to circumvent Bureau operations."  "The Court concludes that the Bureau withheld the operational plan in conformity with Exemption 7(E)." 
  
  "As to the third (database information and search results), the Bureau withheld 'URLs and sensitive details of investigative databases and database search results located through queries of these nonpublic databases used for official law enforcement purposes by the' Bureau."  "Releasing 'database URLs or database-specific information would open those databases up to potential intrusion.'"  "And releasing 'these URLs employed for investigative purposes would allow criminals to more easily access and exploit sensitive information.'"  "The Court concludes that the Bureau properly withheld this database information and the search results under Exemption 7(E)."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "And [the FBI] states that, after 'extensive review of the documents at issue' the Bureau 'has determined that there is no further non-exempt information that can be reasonably segregated and released without revealing exempt information.'"  "[Plaintiff] argues that, even assuming some of the withheld material falls under an exemption, the Bureau withheld entire documents instead of just the exempted portions of them."  "But [the FBI] has declared that the factual information throughout the plan 'is . . . intertwined and cannot be segregated.'"  "Indeed, the plan includes information about [plaintiff's] arrest, 'placement of personnel, administrative and equipment information, deadly force authorization information, targets' background information, briefing locations, and legal consultations with the United States Attorney's Office' all of which makes seamless segregation unfeasible."  "The Court concludes that [plaintiff] has failed to overcome the presumption that the Bureau disclosed all segregable information."