Davis v. FBI, No. 18-0086, 2019 WL 2870729 (D.D.C. July 3, 2019) (Cooper, J.)

Davis v. FBI, No. 18-0086, 2019 WL 2870729 (D.D.C. July 3, 2019) (Cooper, J.)

Re:  Request for records concerning plaintiff's investigation and prosecution

Disposition:  Granting defendants' motions for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he Court concludes that the FBI conducted an adequate search."  The court finds that "[t]he FBI declaration describes a search that could 'be reasonably expected to produce the information requested.'"  "[Plaintiff] wanted records relating to the FBI's investigation of him."  "The FBI searched the system that contains its investigation records for any records using a variety of formulations of [plaintiff's] name, combined with other identifying information unique to [plaintiff]."  "The declaration is beyond 'reasonably detailed,' it 'set[s] forth the search terms and the type of search performed,' and it 'aver[s] that all files likely to contain responsive materials (if such records exist) were searched,' thus providing a more than ample basis for summary judgment."
  
  Additionally, "[t]he Court concludes that the Secret Service conducted an adequate search."  "The Secret Service declaration, like the FBI's, describes a search that could 'be reasonably expected to produce the information requested.'"  "[Plaintiff] sought records relating to the Service's investigation of him."  "The Service asked its Orlando Field Office to conduct the search (given that it had been charged with carrying out the Davis investigation) but for good measure also had ISD conduct a search that might uncover any records outside the Orlando Field Office's domain."  "To be sure, the Service's declaration is not nearly as detailed as the FBI's; while both searched for [plaintiff's] name, the FBI explained exactly how it searched for his name, and the Service does not."  "All the same, the Service's declaration still 'set[s] forth the search terms and the type of search performed' and 'aver[s] that all files likely to contain responsive materials (if such records exist) were searched,' thus providing firm-enough ground for summary judgment."
   
• Exemption 3:  The court holds that the FBI and the Secret service appropriately used Exemption 3.  The court first relates that "[t]he FBI argues that the Bank Secrecy Act . . . requires that certain records responsive to [plaintiff's] request be withheld under Exemption 3."  The court finds that, "[a]lthough documents that involve BSA reports or records of reports – as the FBI describes the withheld documents here – are not, strictly speaking, the same thing as actual BSA reports or records of reports, [plaintiff] does not bother to challenge the FBI's invocation of Exemption 3 in his opposition."  Second, the court finds that "[the Secret Service] explains that the redacted sentences 'identify a witness before a grand jury and the outcome of this grand jury,' . . . and contain information that 'provides insight into the deliberative process, identifies a witness who appeared before the grand jury, and reveals the inner workings of a federal grand jury' . . . ."  "Information like that falls squarely within Rule 6(e)."  "And because Rule 6(e) information may be withheld pursuant to Exemption 3, the Secret Service acted lawfully in doing so."
   
• Exemptions 6 & 7(C):  "The Court . . . holds that the FBI properly withheld information identifying its employees, individuals involved in [plaintiff's] investigation, and other third parties whose names were mentioned in the case files pursuant to Exemptions 6 and 7(C)."  The court finds that "[the] pattern persists for each set of individuals for which the FBI invoked Exemptions 6 and 7(C):  the Bureau gave reasons why disclosure would invade important privacy interests, and [plaintiff] offered no public interest that might justify such an invasion."  Regarding the Secret Service, the court holds that "[plaintiff] again fails to offer a countervailing public interest in disclosure, or otherwise challenge the Service's invocation of Exemptions 6 and 7(C)."  "And the Court, again, cannot conjure a compelling public interest on its own."  "Thus, just as it held with respect to the FBI, so it holds with respect to the Service:  it properly withheld the identifying information pursuant to Exemptions 6 and 7(C)."
   
• Exemption 7(D):  "[T]he Court concludes that the FBI has adequately justified its Exemption 7(D) withholding."  The court relates that "the FBI has indicated that the source 'provided valuable assistance and detailed information specific in nature throughout the mail, wire, money laundering, and investment fraud investigation' of [plaintiff] and his co-conspirators.'  "It stands to reason that only a limited number of individuals would be familiar with the details of a financial fraud scheme, and that those individuals would likely be closely connected with the target of the investigation."  "Public disclosure of the information the source provided – given that so few individuals are privy to such information – might inevitably betray the source's identity, and disclosure of the source's identity might make him or her a prime target for retaliation, as the FBI explains in its declaration."
   
• Exemption 7(E):  "The Court . . . concludes that the Bureau's Exemption 7(E) withholdings were appropriate."  The court relates that the FBI "withheld records revealing 'the techniques and procedures [it] uses to collect and analyze information in connection with both criminal and national security investigations,' . . . 'sensitive information about investigative methods used by the FBI for [plaintiff's] investigation,' which are also used in national security investigations more generally, . . .; the 'investigative focus' of certain FBI investigations, the release of which the Bureau says would reveal its 'strength and weaknesses within certain areas of the criminal arena,' . . .; 'sensitive case file numbers, or sub-file numbers,' which would reveal the 'existence of [publicly] unknown investigations' and 'their nature and geographical locations,' when combined with case file information already in the public domain, . . ., 'non-public FBI secure email or IP addresses, and intranet web addresses,' . . .; and a 'specific, sensitive law enforcement technique that was employed in the criminal investigation of [plaintiff]' . . . ."  the court holds that "[t]he Bureau's declaration and brief expands on the rationale for withholding each subset of information, but the Court need not pause for long on those explanations – for [plaintiff] is silent in response."  "And given the 'low bar' an agency must clear to justify an Exemption 7(E) withholding, . . . perhaps that is for the better."
   
• Procedural Requirements, Searching for Responsive Records:  Regarding plaintiff's argument that "that the Secret Service 'destroyed material evidence' when it returned to [plaintiff's] wife a hard drive it had seized during the investigation – but only after wiping it of its data[,]" the court finds that "[b]ecause the hard drive does not fall within [plaintiff's] request, he cannot show that the Service 'intentionally transfer[red] or destroy[ed] a document after it has been requested under FOIA' . . . ."
  
  Litigation Considerations, "Reasonably Segregable" Requirements:  "[T]he Court concludes that the FBI and Secret Service made every reasonable effort to disclose segregable material."