Dalal v. DOJ, No. 16-1040, 2022 WL 17092863 (D.D.C. Nov. 21, 2022) (Kelly, J.)

Dalal v. DOJ, No. 16-1040, 2022 WL 17092863 (D.D.C. Nov. 21, 2022) (Kelly, J.)

Re:  Requests for records concerning investigation and prosecution of plaintiff

Disposition:  Granting in part and denying in part defendants’ motions for summary judgment; denying plaintiff’s cross-motions for summary judgment

• Litigation Considerations, Adequacy of Search:  First, “[a]t this point, the Court cannot find that the FBI’s search was adequate in its entirety.”  “[T]he FBI has largely met its burden to demonstrate that it made a good-faith effort to search for the requested records where they might reasonably be found.”  “There is, however, one problem with the FBI’s search.”  “The FBI explains that it did not contact [one] Special Agent . . . about the requested informant files because, while [the] Special Agent . . . ‘would have written the initial suitability reports for his confidential informants, these reports then become a matter of record and are indexed and filed within the files of the informants and/or the investigative files of the subjects of the confidential informant’s report.’”  “Fair enough.”  “But the FBI seems to acknowledge that there is a way to find the requested documents:  by ‘manually search[ing] through every single informant file worked by [the Special Agent].’”  “The FBI claims that ‘[s]uch a search would be unduly burdensome.’”  “Maybe, but it has not made a sufficient showing of undue burden.”  “Thus, the FBI will need to explain why such a search of the requested informant files would be unduly burdensome before the Court can agree.”
  
  Second, the court finds that “EOUSA’s affiant represents that its search was ‘reasonably calculated to uncover all records responsive to plaintiff’s request’ and that she is unaware ‘of any other locations . . . where records that might be responsive to plaintiff’s request are likely to be located.’”  “Thus, EOUSA’s reasonably detailed affidavit has shown an adequate search, and the court affords it a presumption of good faith.”
  
  Third, the court holds that “FEMA’s search was adequate as well.”  The court explains that “FEMA’s affidavits are also entitled to a presumption of good faith.”  “And based on these affidavits, it has met its burden to demonstrate that it made a good-faith effort to search for the requested records where they might reasonably be found.”
   
• Exemption 1:  The court relates that “[t]he FBI – and only the FBI – asserts Exemption 1, claiming it exempts the disclosure of certain information that describes intelligence activities, intelligence sources, and methods used by the FBI to gather intelligence.”  “The Court finds that the FBI has met its burden to claim this exemption.”  The court finds that “the FBI’s declarations verify, with reasonable specificity, that all the prerequisites of E.O. 13526 were met.”  “[T]he FBI’s Section Chief of the Record/Information Dissemination Section at the Records Management Division, and an original classification authority –designated the information as ‘Secret’ and determined that it ‘is under the control of the United States Government.’”  “That satisfies the first two elements of E.O. 13526.”   “[Defendant] also determined that the information ‘describes and pertains to intelligence activities, sources, and methods utilized by the FBI in gathering intelligence information,’ and therefore falls within § 1.4(c) of E.O. 13526.”  “He also concluded that ‘the release of this information could permit hostile non-U.S. persons, entities, and foreign governments to appraise the scope, focus, location, target, and capabilities of the FBI’s intelligence-gathering methods and activities, and allow hostile agents to devise countermeasures to circumvent these intelligence activities or methods and render them useless in providing intelligence information.’”
   
• Exemption 3 & Litigation Considerations, In Camera Inspection:  The court relates that “[b]oth the FBI and EOUSA invoke Exemption 3.”  “The FBI raises two statutes, Federal Rule of Criminal Procedure 6(e) and Section 102(A)(i)(1) of the National Security Act of 1947 (‘NSA’), as the basis for withholding under Exemption 3 certain grand jury materials and materials pertaining to intelligence activities, sources, and methods, respectively.”  “The Court finds the FBI properly invoked this exemption.”  “Rule 6(e) bars disclosure of matters before a grand jury.”  The court finds that “[t]he FBI has adequately explained that the withheld grand jury materials fall within Rule 6(e)’s protections.”  “The material withheld consists of ‘names and/or identifying information of third parties who were either subpoenaed to provide testimony or actually provided testimony to the Federal Grand Jury; the company names and/or employees served with Federal Grand Jury subpoenas; information identifying specific records subpoenaed by the Federal Grand Jury; and other information on the internal workings of the Federal Grand Jury.’”  “Turning to the NSA, that statute provides that the Director of National Intelligence ‘shall protect from unauthorized disclosure intelligence sources and methods.’”  “The FBI has carried its burden to invoke Exemption 3 under this statute as well.”  “It represents that the information withheld was originally classified at the confidential or secret level and ‘the FBI’s intelligence sources and methods would be revealed if any of the withheld information is disclosed.’”  “And the FBI’s classified declaration submitted in camera provides more detail.”  “All of this is sufficient.”
  
  “EOUSA invokes Rule 6(e), as well as Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520 . . . .”  “The Court finds its withholding proper.”  “To begin, the Court agrees with EOUSA that . . . Rule 6(e) covers the subpoenas in their entirety . . .  As EOUSA explains, release of the subpoenas ‘would reveal the identities of witnesses and provide information about the substance of testimony given before the grand jury, the strategy or direction of the investigation,’ and ‘the deliberations or questions of the grand jurors.’”  Regarding plaintiff’s request for in  camera inspection, the court finds that “[plaintiff] provides no evidence of bad faith to support his assertion that EOUSA has mischaracterized the records.”
   
• Exemption 5, “Inter-Agency or Intra-Agency” Threshold Requirement:  The court relates that “[t]he FBI and EOUSA also invoke Exemption 5.”  The court holds that “‘[a]s [plaintiff] appear[s] to share [the agencies’] assumption that the documents involved here qualify as inter-agency or intra-agency memoranda under Exemption 5 (and would therefore be exempt if they [meet the relevant privilege elements]),’ the Court ‘will assume without deciding that they are such memoranda’ and proceed to considering whether they qualify for any of the three privileges.”
   
• Exemption 5, Deliberative Process Privilege:  The court relates that “[t]he FBI invokes the deliberative process privilege to withhold portions of [plaintiff’s] law enforcement records.”  “But the Court agrees with [plaintiff] that the FBI has not (at least yet) provided enough information to invoke the deliberative process privilege for these documents.”  “‘Assessing whether a record is pre-decisional or deliberative necessarily requires identifying the decision (and the associated decisional process) to which the record pertains.’”  “But [the FBI’s] nebulous explanation leaves unclear what decision or decisional process is at issue.”  “On top of that, the document ‘descriptions are too vague for the Court to discern the function and significance of the documents in the agency’s decisionmaking process.’”  Additionally, the court finds that “the FBI leaves unclear both who drafted the documents at issue and who received them.”
   
• Exemption 5, Attorney-Client Privilege:  The court relates that “[t]he FBI asserted the attorney-client privilege to withhold in full or in part 47 pages of communications ‘between FBI personnel and its Office of General Counsel (‘OGC’) agency attorneys.’”  “The Court agrees that the privilege applies.”  “According to the FBI, the withheld communications were confidential and would reveal OGC’s analysis in formulating a legal position.”  “The legal advice pertained specifically to ‘the legal requirements and protocols required prior to FBI personnel testifying in court proceedings.’”
   
• Exemption 5, Attorney Work-Product Privilege:  The court relates that “[t]he FBI asserted the work-product privilege to withhold in full or in part 46 pages of electronic communications, forms, and other ‘investigative documents’ prepared by special agents in the Newark Field Office ‘to memorialize conversations between themselves and the AUSA concerning the criminal proceedings of the subject.’”  “The Court agrees that the privilege applies to these documents.”  “As the FBI explained, they ‘were prepared as a direct result of conversations between [special agents] and attorneys with the DOJ [Office of General Counsel] and under their advice and direction . . . with the reasonable anticipation of litigation,’ i.e., criminal proceedings against [plaintiff].”  “The FBI goes on to briefly describe the nature of each document, its author or origin, the circumstances of its creation, and the type of litigation for which the document's use was foreseeable.”  “Thus, the FBI has met the requirements for invoking the attorney work-product privilege.”  The court relates that plaintiff “contends that the privilege does not apply because the FBI admits that FBI special agents – not attorneys – prepared the withheld documents.”  The court finds that “the privilege covers ‘material prepared by agents for the attorney as well as those prepared by the attorney himself.’”
  
  Regarding EOUSA, the court relates that “EOUSA has asserted the attorney work-product privilege to withhold a seven-page email, and the Court agrees that the privilege applies.”  “The withheld email contains ‘information related to trial preparation, trial strategy, interpretations, and personal evaluations and opinions pertinent to plaintiff’s criminal case.’”  “The email was ‘prepared by, or at the request . . . of [USAO] attorney[s], and made in anticipation of, or during litigation,’ and, if released, would reveal ‘deliberations concerning asset forfeiture decisions as well as possible strategies as they relate to the case.’”  Responding to plaintiff’s contention that “the government-misconduct privilege applies in the FOIA context,” the court holds that “[it] need not decide that question.”  “Even if it does apply, [plaintiff] has not shown sufficient reason to believe the email may shed light on government misconduct.”
   
• Exemption 6:  The court relates that “[o]nly FEMA asserts Exemption 6 as the sole basis to withhold certain material.”  “FEMA withheld in part documents falling within three categories:  award letters, ‘Non-Profit Security Grant Program investment justifications,’ and applications for federal assistance.”  “As for the award letters, FEMA redacted the names and phone numbers of third-party individuals from a state agency.”  “In the investment justifications, it withheld ‘(1) the names of third[-]party local law enforcement individuals, (2) the names of individuals associated with the organization applying for the [Non-Profit Security Grant Program] Award who are responsible for managing the security upgrades, and (3) the names of third[-]party individuals associated with an entity that conducted a security assessment on behalf of the applicant.’”  “Finally, in applications for federal assistance, it redacted ‘the names, phone number, and email of third[-]party individuals associated with the organization seeking federal assistance and who are part of the organization’s membership.’”  “The Court agrees with FEMA that Exemption 6 justifies these withholdings.”  “Here, all the withheld information easily constitutes ‘similar files’ because names, phone numbers, and emails ‘can be identified as applying to’ specific individuals.”  “And the balancing inquiry favors withholding the information described above.”  “‘[I]ndividuals have a substantial privacy interest in personal information such as their telephone numbers and addresses,’ and ‘releasing the personal information of third parties . . . does not “contribut[e] significantly to public understanding of the operations or activities of the government.”’”  “‘[I]f the private information of applicants, recipients and managers of these grants were made public, a significant number of individuals would be endangered.’”  “Indeed, many applicants, recipients and managers are linked to synagogues and other Jewish organizations, and there has been a ‘surge in anti-Semitic threats’ in the form of ‘100 bomb threats . . . against Jewish centers and schools in the United States and Canada’ in one recent year alone.”
   
• Exemption 7, Threshold:  The court relates that “[t]he FBI, EOUSA, and FEMA all invoke at least one of Exemption 7’s sub-parts.”  The court holds that “[a]ll three agencies have met this threshold to invoke Exemption 7.”  “To begin, ‘an assertion by the FBI that the records are for a law enforcement purpose is entitled to deference because the FBI is a law enforcement agency.’”  “But in any event, it is plain the documents at issue were so compiled, specifically in connection with ‘the FBI’s criminal investigation into [plaintiff’s] crimes involving religious discrimination, use of force and/or violence, acts of terrorism, and domestic terrorism’ . . . .”  “Similarly, as for EOUSA, ‘[a]ll the information at issue was compiled . . . to facilitate the investigation and criminal prosecution of plaintiff.’”  “FEMA’s case is slightly more complicated, but ultimately the Court sides with the agency.”  “FEMA’s ‘Non-Profit Security Grant Program provides support for target hardening and other physical enhancements to nonprofit organizations at high risk of terrorist attack’ and fosters ‘coordination and collaboration in emergency preparedness activities among public and private community representatives, as well as state and local government agencies.’”  “Thus, these ‘steps by [FEMA] to prevent terrorism surely fulfill [l]aw enforcement purposes.’”
   
• Exemption 7(A):  The court relates that “[t]he FBI invoked Exemption 7(A) to withhold in full 26 pages of records from the investigation into [plaintiff’s] crimes . . . .”  “At the time of the briefing, the FBI represented that the investigation into [plaintiff] was ongoing . . . .”  “But since then, [plaintiff’s] appeal has concluded.”  “Thus, the Court will deny without prejudice [plaintiff’s] and the FBI’s motions for summary judgment as to this exemption and permit the FBI to file a supplementary declaration addressing whether any investigation or other enforcement proceeding remains pending . . . .”
   
• Exemption 7(C):  First, the court relates that “[t]he FBI invoked Exemption 7(C) to withhold in full or redact documents to protect the names and identifying information of (1) FBI special agents and support personnel, (2) third parties of investigative interest, (3) state and local law enforcement personnel, (4) non-FBI federal, state, and local government employees, (5) third parties ‘merely mentioned,’ (6) victims, and (7) third parties who provided information to the FBI.”  “In one instance, the FBI provided a Glomar response by refusing to confirm or deny whether certain documents exist because the very fact of their existence is protected by Exemption 7(C).”  “The Court finds that all this information was properly withheld under Exemption 7(C), and the FBI’s use of a Glomar response was appropriate.”  “The Court is satisfied that releasing the withheld names and identifying information identified above ‘could reasonably be expected to constitute an unwarranted invasion of personal privacy.’”  Additionally, the court finds that “[plaintiff] has not articulated a public interest that would trigger the balancing test.”  Specifically regarding the FBI’s Glomar response, the court finds that “[plaintiff] requested various FBI records about [an individual] who he says was an FBI informant.”  “The FBI further explained in its summary judgment briefing that the requested records – various informant evaluation forms and records of communications with FBI agents – pertain to law enforcement proceedings and investigations, and that acknowledging whether the records exist would connect [the individual at issue] to them as an informant and potentially stigmatize him or endanger him.”  The court finds that “[t]his explanation suffices.”  Regarding plaintiff’s claim that the alleged informant was officially acknowledged by the FBI, “[the relevant] testimony was provided by a state law enforcement officer, not the FBI, and agencies may ‘give a Glomar response despite the prior disclosure of another, unrelated agency.’”
  
  Second, the court relates that “EOUSA invoked Exemption 7(C) to withhold in its entirety a 24-page search warrant application.”  “But the Court is not convinced that withholding the application in full is appropriate – at least not based on the information before it.”  “According to EOUSA, the application includes the names ‘of third-party individuals, such as potential witnesses and law enforcement personnel.’”  “It also details the declarant’s qualifications, contains ‘accounts of third parties who provided information,’ and includes ‘transcripts of conversations gathered by law enforcement personnel.’”  “But the inclusion of all this information does not justify ‘withhold[ing] [the] responsive document in toto.’”  “Thus, the Court will deny EOUSA’s and [plaintiff’s] motions for summary judgment without prejudice as to this document.”  “EOUSA ‘must attempt to make a more particularized showing as to what documents or portions thereof are exempt’ . . . .”
   
• Exemption 7(D):  The court relates that “[o]nly the FBI invoked Exemption 7(D) . . . .”  “It first explains that it withheld information provided by high school employees and others during an investigation into [plaintiff’s] bomb threats on a high school ‘under implied assurances of confidentiality.’”  “[Plaintiff] does not seek information about that investigation . . . , so summary judgment will be granted in favor of the FBI as to those withholdings.”  “The FBI also withheld information because of express assurances of confidentiality.”  “It withheld (1) ‘information provided by confidential source symbol numbered informants’; (2) ‘confidential source symbol numbers’; and (3) ‘names, identifying information about, and/or information provided by sources under express assurances of confidentiality.’”  “In support, the FBI details the sensitive nature of the confidential source symbol numbered informants’ work and verifies that the informants are given ‘express assurance that the FBI will . . . keep their identities and the information they provided confidential.’”  “Despite [plaintiff’s] claims to the contrary, these explanations show that disclosure ‘could reasonably be expected to disclose the identity of a confidential source.’”
   
• Exemption 7(E):  The court relates that “[b]oth the FBI and FEMA invoked Exemption 7(E).”  “The FBI invoked Exemption 7(E) to withhold in full and in part dozens of documents that contain fifteen categories of information:  (1) the ‘location and identity of FBI and/or Joint Units, Squads, and/or Divisions,’ (2) ‘[d]ates and types of investigation – [p]reliminary or full investigations,’ (3) ‘[m]ethods for collection/analysis of information,’ (4) ‘[i]nformation about the installation, locations, monitoring and types of devices utilized in surveillance,’ (5) ‘Suspicious Activity Report information,’ (6) ‘[d]atabase information and/or printouts from non-public databases,’ (7) ‘[i]nvestigative focus of specific investigations,’ (8) ‘[i]nternal FBI email or IP address/Intranet Web Address,’ (9) ‘[s]ensitive file number or subfile names,’ (10) ‘[s]trategy utilizing particular evidence,’ (11) ‘Computer Analysis Response Team (‘CART’) reports and/or data,’ (12) ‘[o]perational directives about sensitive investigative techniques and strategies,’ (13) ‘[s]pecific law enforcement techniques utilized to conduct national security investigations,’ (14) ‘[s]tatistical information contained in effectiveness rating FD-515,’ and (15) ‘[m]onetary payments.’”  “The Court finds that these withholdings were proper.”  “For each category, the FBI has explained how the release of the information ‘logically . . . might create a risk of circumvention of the law.’”
  
  “FEMA invokes Exemption 7(E) to justify redactions on dozens of pages of ‘Non-Profit Security Grant Program’ investment justifications.”  “But at this point, the Court cannot find the invocation proper.”  “According to FEMA, investment justifications are ‘document[s] . . . completed by [an] applicant to provide an explanation for the need for funding as well as how the funding will be spent.’”  “The redacted information includes ‘[i]dentified vulnerabilities and consequences associated with a potential terrorist attack,’ ‘[t]arget hardening activities including physical security enhancement equipment security upgrades, and inspection and screening system to protect against a potential terrorist attack,’ and ‘[t]he milestones associated with target hardening and security upgrades.’”  “Based on this information, FEMA has shown ‘logically how the release of [this] information might create a risk of circumvention of the law.’”  “Disclosure of this information would allow someone ‘to exploit’ security grant applicants’ ‘identified weaknesses’ and ‘know which security systems have been upgraded and thus exploit those systems that have not,’ resulting ‘in a high risk of circumvention of the law’ and the increased ‘threat of a terrorist attack.’”  “But the ‘requirement that disclosure risk circumvention of the law’ is only half of the equation.”  “FEMA still must show that the information withheld at least ‘relat[es] to guidelines, techniques, sources, and procedures for law enforcement investigations and prosecutions.’”  “FEMA states without explanation that the redacted categories of information are ‘techniques and procedures.’”  “But it is not immediately clear how information provided by third parties for funding grants even relates to ‘techniques and procedures for law enforcement investigations or prosecutions.’”  The court states that it will “give FEMA another opportunity to explain how the withheld information relates to ‘techniques and procedures for law enforcement investigations or prosecutions’ or how it relates to ‘guidelines for law enforcement investigations or prosecutions.’”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  The court holds that “[t]he [agencies] ha[ve] met [their] burden in part.”  For all three agencies, the court found that the agencies had conducted a line-by-line review and were entitled to a presumption of reasonable segregability for all of the documents found to be properly withheld.  “As for documents [withheld by the FBI pursuant to] “Exemption 5’s deliberative process privilege and Exemption 7(A),” “[EOUSA’s] search warrant application withheld . . . under Exemption 7(C),” and “FEMA’s Exemption 7(E) withholdings[,] “the Court . . . reserve[d] ruling on segregability” until after “[the agencies submit] supplemental declarations . . . .”