Canning v. DOJ, No. 11-1295, 2017 WL 2438765 (D.D.C. June 5, 2017) (Kessler, J.)

Canning v. DOJ, No. 11-1295, 2017 WL 2438765 (D.D.C. June 5, 2017) (Kessler, J.)

Re:  Requests for information concerning third parties

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he Court concludes that, as to each of Plaintiff's FOIA requests, the FBI's search was reasonably calculated to uncover the relevant documents."  The court explains that "[defendant's] declarations identify, with reasonable specificity, the 'system of records searched and the geographic location of those files.'"  Responding to plaintiff's arguments, "[t]he Court finds Defendant's search methods to be reasonable and, absent a showing of bad faith, the Court will not second guess Defendant's search process."  The court further responds that "[defendant] provided a reasonably detailed affidavit clarifying why it only searched its Field Office, and why a search of the FBI Headquarters for the same documents would be redundant and not likely to result in the location of additional responsive records."  Also, "[plaintiff] does not explain why the search terms he proposes are more likely to uncover responsive information than the search terms the Government used."
   
• Exemption 1:  "Finding that the withheld information was classified in accordance with the applicable procedural and administrative requirements of Exec. Order 13526, the Court concludes that Defendant properly withheld the challenged classified material under Exemption 1."  The court finds the same with several records referred to other government agencies.  The court also finds that, "[a]lthough [plaintiff] may be correct that the Government cannot withhold declassified information under Exemption 1, the Court need not examine this issue further because in its Reply Motion, it agreed to release the portions of the . . . memorandum that were declassified."  Lastly, the court finds that "[p]laintiff's argument [concerning "the adequacy of the FBI's and CIA's declassification reviews"] is unpersuasive for two reasons."  "First, Executive Order 13526 expressly indicates that the determination of whether the 'exceptional case' exists in which 'the need to protect [classified] information may be outweighed by the public interest in disclosure' is a matter of agency discretion."  "Second, Executive Order 13526 does not require Defendant to submit intelligence information to the Director of National Intelligence for declassification review as a matter of course."  "Instead, the Order merely states that the Director may declassify information upon consultation with the relevant department."
   
• Exemption 3:  The court holds that "[t]he CIA and State Department have adequately demonstrated that the withheld material falls within the exemption statutes."  "Section 102(A)(i)(1) of the NSA permits the CIA to withhold information relating to 'intelligent sources and methods,' . . . and Section 6 of the CIA Act protects against the disclosure of the identities of CIA employees."  The court relates that, "[a]ccording to the CIA, the release of the withheld material would reveal the identities of covert CIA employees and the existence and location of covert CIA field installations."
   
• Exemption 7(C):  "[T]he Court finds that the Government properly withheld the challenged material under Exemption 7(C)."  The court explains that "[t]he Government's withholding of the names of FBI personnel and third parties that are interviewed by the FBI, who are of interest to the Bureau, or mentioned in internal documents, clearly protects legitimate privacy interests."  "These individuals have a strong privacy interest because of the potential for harassment."  Against this, the court finds that "[plaintiff's] speculation [in regard to his public interest showing] does not constitute 'evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.'"  The court also addresses plaintiff's argument regarding the FBI's "'100-year rule'" and finds that "[t]he Court of Appeals has considered the FBI's use of this method to determine the life and death of individuals mentioned in its withholdings and found it to be reasonable."  For similar reasons, the court finds that defendants also properly withheld "the signature of a government employee from disclosure pursuant to Exemption 7(C)."
   
• Exemption 7(D):  "The Court agrees with the Government that disclosure of the withheld material could potentially lead to the identification of confidential sources, endanger informants, affect the cooperation of future FBI informants, and diminish cooperation between the FBI and other law enforcement authorities."  The court relates that "after the Government more fully explained the basis for its Exemption 7(D) assertions in its Reply Motion, [plaintiff] withdrew his challenge over the documents being withheld under an implied promise of confidentiality."
   
• Exemption 7(E):  "The Court . . . concludes that Defendant properly withheld this information under Exemption 7(E)."  The court relates that "[t]he Government invokes Exemption 7 (E) to withhold symbol source numbers, information concerning electronic monitoring conducted by the FBI, internal FBI code names, and information regarding law enforcement techniques that the FBI uses to obtain intelligence in its investigations."  Responding to plaintiff's arguments, the court finds that "[p]laintiff's assertions . . . do not indicate that the specific material withheld in this case is in the public domain."  "Nonetheless, even if certain aspects of the techniques described in the withheld material are publically known, 'even commonly known procedures may be protected from disclosure if the disclosure could reduce or nullify their effectiveness.'"  The court notes that plaintiff does not contest the withholding of "navigation codes."
   
• Waiver:  First, the court finds that plaintiff "has identified specific material that has been officially disclosed to him by the Government – i.e., identifying information concerning [two third parties] – which duplicates the information the Government continues to withhold."  "Accordingly, the Court concludes that [plaintiff] is entitled to this information."  Second, the court agrees with plaintiff's contention that "certain information that the Government has withheld in response to his . . . request . . . was previously released to a different FOIA requester[.]"  The court finds that plaintiff is entitled to this information as well.