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Curry v. FBI, No. 18-0439, 2024 WL 21466 (D.D.C. Jan. 2, 2024) (Sullivan, J.)


Curry v. FBI, No. 18-0439, 2024 WL 21466 (D.D.C. Jan. 2, 2024) (Sullivan, J.)

Re:  Requests for records concerning plaintiff’s criminal investigation

Disposition:  Granting defendants’ motion for summary judgment

  • Exemption 3:  The court relates that the FBI withheld “protected information that the FBI obtained through the Bank Secrecy Act (‘BSA’), Titles I and II of Public Law 91–508, as amended, codified at 12 U.S.C. § 1829b, 12 U.S.C. §§ 1951–1959, and 31 U.S.C. §§ 5311–5332, enacted before 2009.”  “The BSA requires financial institutions to file financial reports that can be used, if necessary, in criminal, tax, and regulatory matters, to combat money laundering and enforce compliance.”  “Those reports, and the records of those reports, are explicitly exempt from disclosure under the FOIA.”  The court finds that “[h]ere, the FBI withheld BSA-related information that was initially produced ‘during the course of criminal investigative activities.’”  “The FBI obtained this information from Financial Crimes Enforcement Network (‘FinCEN’), a U.S. Treasury ‘multisource intelligence and analysis network[,] that implements the BSA, that also promulgated its own regulation to exempt its BSA records from disclosure’ . . . .”  “More specifically, the FBI now attests that it withheld FinCen-sourced information contained in a single electronic communication.”  “With the relevant documents and information identified, and with no opposition from Plaintiff, the Court finds that the FBI properly withheld this information from the [electronic communication], as it was originally ‘derived from reports generated pursuant to the Bank Secrecy Act, and the Act deems such reports exempt from disclosure under the FOIA.’”
  • Exemption 7(A):  The court relates that “[t]he FBI ‘asserted Exemption 7(A) in a limited fashion to protect a pending investigative FBI File number within the responsive records.’”  “[Defendant] attests that ‘[t]he release of this information would reveal unknown information concerning pending enforcement procedures, to include the existence of unknown investigations[,]’ and would ‘provide criminals with information about the government’s investigation/enforcement strategies in ongoing matters, allow them [to] predict and potentially thwart these strategies, and/or allow them to discover/tamper with witnesses and/or destroy evidence.’”  “More specifically, the FBI now attests that it redacted the relevant FBI file number from certain [electronic communications].”  “Plaintiff has . . . offered nothing in the way of opposition.”  “Given the FBI’s provision of this supplemental information, the Court finds that the file number was properly redacted under Exemption 7(A), because ‘[a]s of the filing of [its] [D]eclaration, the investigations were “pending” and “ongoing,” satisfying the temporal requirements of Exemption 7(A).’”
  • Exemption 7(E):  The court relates that “[t]he FBI withheld ten categories of information under Exemption 7(E), . . . but only two of those ten categories remain in controversy.”  “The first category relates to the FBI’s redaction of ‘protected phone numbers, internal e-mail addresses, and non-public intranet web addresses.’”  “The FBI attests that such release would out the agency at risk for cyber-attacks on FBI secure communications by criminals and hackers, and from there, they could ‘gain unauthorized access to FBI systems, view and/or manipulate sensitive investigative data, interfere with the FBI’s non-public intranet protocol, and/or hinder the FBI’s ability to enforce the law by disrupting the FBI’s internal communications.’”  The court finds that “[g]iven this supplemental information, the Court concludes the information was properly withheld from the identified internal documents.”  “Internal website and email information of this kind falls well within the ambit of Exemption 7(E) . . . .”

    “The second remaining category of information at issue involves the FBI’s ‘FD-515s’ – forms used by FBI supervising agents to report investigative accomplishments and statistically significant events – i.e., ‘recovery of stolen property, an arrest, or a conviction’ – as fruits of a criminal investigation.”  “These forms include a portion itemizing and describing ‘Investigative Assistance and Techniques Used.’”  “The listed techniques/assistances are also each associated with a noted numerical rating which assesses their respective effectiveness.”  “The FBI redacted the details relating to those ratings for the techniques/assistances used in Plaintiff’s criminal investigation.”  “The FBI indicates that redacting such information is meant [to] thwart those ‘others involved in similar criminal activities [who] could change their methods and modus operandi’ based on the level of success of the FBI strategies employed in Plaintiff’s investigation.”  “The FBI also redacted the ‘Assisting Agencies’ category, derived from the FD-515s, pursuant to ‘standard RIDS processing policy[,]’ in an effort to protect information regarding any other federal, state, or local law enforcement that may have assisted the FBI in its investigation of Plaintiff and others.”  “[Defendant] indicates that the release of this information risks emboldening such criminals to continue undetected criminal activities and would further allow criminals to ‘judge law enforcement agencies’ strengths and weaknesses in regard to detecting/disrupting particular criminal activities; structure their activities to exploit this knowledge; and successfully evade law enforcement agencies’ efforts to enforce the law.’”  “Last, the FBI redacted the FD-515’s standard listings of ‘Subject Description Codes.’”  “[Defendant] explains, with corresponding examples, that these codes are often associated with ‘the individual indicted/arrested/convicted’ and revealing them ‘would immediately describe the nature of FBI’s gathered criminal intelligence on the individual, and the level of the FBI’s investigative focus.’”  “The FBI would then be at risk of exposing ‘whether or not [it] has detected particular criminal activities,’ which would enable criminals to ‘preemptively destroy other incriminating evidence, and/or embolden them to continued undetected criminal activities.’”  “The Court finds that FD-515-related information was properly redacted under Exemption 7(E), that the FBI has properly described each category and how release of that information would risk circumvention of the law, and it has now identified the materials that were, in fact, redacted.”
Court Decision Topic(s)
District Court opinions
Exemption 3
Exemption 7(A)
Exemption 7(E)
Updated February 1, 2024