Callimachi v. FBI, No. 20-1362, 2022 WL 266698 (D.D.C. Jan. 28, 2022) (McFadden, J.)

Callimachi v. FBI, No. 20-1362, 2022 WL 266698 (D.D.C. Jan. 28, 2022) (McFadden, J.)

Re:  Request for records concerning deceased Romanian ambassador as well as other Romanian politicians and intelligence agencies 

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

• Procedural Requirements, Searching for Responsive Records:  "[T]he Court holds that the FBI's search for responsive records [concerning the Romanian Ambassador] was adequate."  "To locate records, the FBI conducted an index search of its Central Records System (CRS)."  "The agency organizes files in the CRS by a series of indices."  "[T]he CRS is 'where the FBI indexes information about individuals, organizations, events, and other subjects.'"  "In response to [plaintiff's] request, the FBI searched the main index entries, the reference index entries, and the manual indices using [the Romanian Ambassador's name and variations thereof]."     
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "Here, the FBI reviewed all responsive pages 'line by line' to determine what segregable information it could release."  The court finds that "the combination of the Bureau's Vaughn Index and affidavits show with 'reasonable specificity'—confirmed by the Court's in camera review—that the Bureau released all segregable information."  "The Court holds that the FBI fulfilled its segregability obligation."          
   
• Exemptions 6 & 7(C), Glomar Response:  "The privacy interest is straightforward."  "As the D.C. Circuit has explained, '[i]f a FOIA request is made for FBI investigative records regarding a particular individual, the FBI's mere acknowledgment that it possesses responsive records associates the individual' with 'suspected criminal activity.'"  "Since any responsive documents would mention [the Romanian politicians], they have a 'significant privacy interest[]' at stake."  The court notes that "[Plaintiff] mentions no public interest in her filings."  "[Plaintiff's] argument thus boils down to the following proposition:  The FBI must have records on these subjects because it has a 'clear' interest, [] in 'historical events and foreign intelligence operatives.'"  However, "[plaintiff] disclaims any 'official acknowledgment' argument."  "The Court thus upholds the FBI's Glomar responses."
   
• Exemptions 1 & 3, Glomar Response:  "The FBI invokes Executive Order 13,526 [for Exemption 1]," and "[t]o support the Exemption 3 response, the FBI relies on the National Security Act of 1947 . . . ."  The court finds that "the FBI has logically and plausibly explained why the existence or nonexistence of responsive records is classified information."  "The existence of responsive records would show that the FBI 'has an intelligence interest in, and the ability to gather information about' a foreign intelligence agency."  "Confirmation or denial of the existence of records would allow foreign adversaries 'to learn about the interests, certain methods, and capabilities of the FBI and about its intelligence-gathering activities.'"  "Adversaries could use that knowledge to employ 'countermeasures to nullify' the effectiveness of the FBI's activities."  "[Knowledge of the nonexistence of records] would be 'extremely valuable information' to foreign adversaries looking for blind spots in the FBI's capabilities."
   
• Exemption 1:  "The FBI withheld three types of information under Exemption 1."  "First, 'detailed intelligence gathered or compiled' on a 'specific individual or organization of national security interest.'"  "The FBI asserts that releasing this information would reveal 'actual' methods used against a particular target; disclose the FBI's 'intelligence-gathering capabilities'; and provide an assessment of 'intelligence source penetration of a specific target during a specific period of time.'"  "Second, the FBI withheld file numbers assigned to specific intelligence activities."  Defendant contends that "[d]isclosing those numbers would allow adversaries to match information containing the same file number with a particular file."  "The FBI worries that bad actors could thus craft 'a partial mosaic' of intelligence activity associated with a specific file number and identify what intelligence activities correspond with each file number."  "Third, the FBI withheld 'identifying information of and information provided by' human intelligence sources."  Defendant contends that "[t]hat information included information from those sources that 'could identify' them, possibly subjecting 'them to retaliation' for cooperating."  "The FBI also withheld numerical indicators that it assigned to each source."  Defendant asserts that "[d]isclosure of those identifiers could allow a hostile actor to 'correlate the records and whatever information that can be gleaned from [those] records to specific sources.'"
  
  "[Plaintiff] points to § 3.3 of Executive Order 13,526 [as requiring release of the redacted information]."  "Section 3.3(a) automatically declassifies records 'that are [] more than 25 years old,' which describes much of the records here."  "The Court agrees that the FBI's explanation about § 3.3(b)(1) says little."  "But taken as a whole, the affidavit makes the required showing under that section."  "The withheld material would reveal information about 'current' intelligence activities and methods [] and about activities 'which continue to be sources of intelligence to this day."  "The Court finds those statements explain in adequate detail 'that the withheld [E]xemption 1 information would expose sources and reveal intelligence methods.'"
   
• Exemption 7(D):  "[Plaintiff] challenges only the withholding of 'names and identifying information of, and information provided by, individuals to the FBI under an express assurance of confidentiality.'"  "The Court will uphold the FBI's invocation of Exemption 7(D)."  "Here, the FBI says three 'positive indicators' in the withheld information ensure that the agency promised confidentiality to the sources who provided that information."  "First, FBI personnel designated some sources with 'CHS,' meaning confidential human source, or 'CW,' meaning cooperating witness."  "According to the agency, 'standard FBI practice' requires the agency to promise confidentiality before it can give either designation to a source."  "Second, the FBI found source file numbers associated with a particular individual."  "These file numbers 'are unique to particular confidential sources,' [] so their presence is evidence that the associated individual was an official source who received an express assurance of confidentiality."  "Third, the FBI withheld an individual's information when the agency located a source symbol number."  "The FBI assigns these symbol numbers to human sources 'who report information to the FBI on a regular basis under an express assurance of confidentiality.'"  "Naturally, the presence of a symbol number 'is a positive indication' that the individual associated with that number received an express assurance of confidentiality." 
   
• Exemption 7(E):  "[Plaintiff] challenges six categories of information withheld under Exemption 7(E)."  The court holds that "the FBI properly withheld the materials."  "In the first category, the FBI withheld 'sensitive investigative file numbers located in the records at issue.'"  "The Court agrees that disclosing this information would give bad actors 'an exceptional understanding' of the FBI's procedures."  The court finds that "[a] criminal could use various components of these numbers to track how the FBI investigates particular subjects and whether those investigations might relate to one another."  "And a criminal who knows which office originated which file might then adjust his behavior to avoid that office's purview, geographic or otherwise."
  
  "The FBI next withheld 'methods used to collect and analyze information obtained for investigative purposes.'"  "After in camera review, the Court is persuaded that disclosure of this category would risk circumvention of the law."  "A criminal can double his efforts to avoid detection once he knows the methods that law enforcement uses to catch wrongdoers."  "That is true even for historical methods."  "Not only do the law enforcement procedures of today build on what came before, but certain investigations might require a return to earlier investigative techniques."  "After all, Sherlock Holmes began using fingerprint evidence 130 years ago, and that technique remains critical to law enforcement today."  "Third, the FBI withheld 'the location and identity of an FBI unit, squad, and division involved in the investigation of [the Romanian Ambassador].'"  "[T]he Court's in camera review confirms that the withheld information corresponds with current FBI offices, not offices that investigated [the Romanian Ambassador's] death."  "Thus, disclosure of this information would say something about how the FBI currently conducts investigations."  "That is consequential information for any criminal seeking to circumvent the law."
  
  "[Plaintiff] next challenges 'the identity of sensitive, non-public investigative databases' and search results located through those databases."  "The FBI asserts that disclosing this information would reveal which databases are most useful to the agency and what information the FBI finds most helpful when it conducts investigations."  "This information would also reveal where the FBI stores valuable information and how it obtains that data."  "The Court agrees with the FBI's assessment."  "The FBI also withheld 'the non-public focuses of specific FBI counterintelligence investigations in the records at issue.'"  The court finds that "[t]he risk of circumvention that would attend disclosure of this information appears obvious."  "Disclosure would alert subjects to the FBI's interest, allowing them 'to conceal or destroy evidence or to modify their behavior to avoid future investigative scrutiny.'"  "Lastly, the FBI withheld 'information pertaining to the types and dates of investigations referenced in the records at issue.'"  "The Court agrees with the Bureau that revealing this information would show its investigative 'toolbox' that it uses for some investigations."  "The same holds for information about the timing of investigations."  "Thus, disclosure of this information would allow criminals to predict the FBI's next steps and to adjust behavior to avoid those steps." 
   
• Foreseeable Harm:  Regarding Exemption (7)(D), the court agrees that "'[r]elease of such information would endanger' confidential sources and would 'cause great detriment to the FBI's ability to recruit and maintain' reliable sources.'"
  
  Regarding Exemption (7)(E), the court relates that the "foreseeable harm for Exemption 7(E) is linked to a proper assertion of the exemption itself."  "Because the exemption 'by its own terms' requires an agency to show a risk of circumvention from disclosure, fulfilling the terms of 7(E) also fulfills the foreseeable harm requirement."  "So if the FBI has properly invoked Exemption 7(E), it has also carried its burden under the foreseeable harm requirement."   
   
• Exemption 3:  "As with its Glomar response, the FBI relied on 50 U.S.C. § 3024(i)(1) [to redact records responsive to the request for records concerning the Romanian Ambassador]."  "The Court's in camera review confirms that the FBI asserted Exemption 3 only along with Exemptions 1 and 7(E)."  Because "the Court has upheld the use of those exemptions[,]" "the Court need not render an opinion on whether the FBI properly invoked Exemption 3."