Dillon v. DOJ, No. 17-1716, 2020 WL 1245308 (D.D.C. Mar. 16, 2020) (Contreras, J.)

Dillon v. DOJ, No. 17-1716, 2020 WL 1245308 (D.D.C. Mar. 16, 2020) (Contreras, J.)

Re:  Request for records concerning FBI's determination that United States Army Medical Research Institute of Infectious Diseases scientist was responsible for 2001 anthrax mailing attacks

Disposition:  Granting defendant's renewed motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  First, regarding the scope of plaintiff's FOIA request, "on the Court's read of the text of [a] letter [sent by plaintiff to defendant] in the broader context of Plaintiff's ongoing appeals to and communications with the FBI concerning his FOIA requests, it appears self-evident that the letter limited the search for responsive records to the two requested items – and thereby narrowed the original request.  The court relates that plaintiff argues that "'the FBI improperly narrowed the scope'" of his FOIA request based on a second letter that he sent to defendant.  The court finds that "[t]he letter that [plaintiff] submitted in the context of an administrative appeal outright states that Plaintiff sought 'two specific kinds of evidence.'"  "Any 'professional employee of the agency who was familiar with the subject area of the request,' . . . would naturally construe the request as – based on the plain text of Plaintiff's appeal – seeking only those two items."  "The Court's conclusion is further reinforced by Plaintiff's own conduct."  "Notably, [plaintiff] at no point stated in the letter, nor in any subsequent appeal to or communication with the FBI, that this 'test' of his 'assumption' was a request that operated in parallel with the broader FOIA request."  "Rather, this particular, and more narrowly specified, administrative appeal occurred after he had previously reiterated the broader scope of the records he sought."  "The Court, moreover, notes that Plaintiff's own complaint and cross-motion in the first round of summary judgment briefings, submitted by his former counsel, characterize the request as it was made in this letter as a more limited, narrower version of the original submission."
  
  Second, "because Defendant has established the adequacy of its supplemental search and Plaintiff has not established that a 'genuine dispute of material fact exists as to the adequacy of the search,' . . . the Court grants Defendant's motion for summary judgment and denies Plaintiff's cross-motion with respect to the adequacy of the search for documents responsive to the first FOIA request."  The court finds that "DOJ's declarations documenting its most recent search carry the agency's burden to demonstrate that it has conducted the sort of good faith, reasonable search that FOIA demands."  "Because the adequacy of a search does not turn on what the agency finds, . . . the Court rejects at the outset any allegation by [plaintiff] that the search is inadequate simply because the FBI failed to locate any emails in the 1A binders apart from those that [plaintiff] had previously identified."  "What matters are the methods that the FBI used to carry out the search."  "Defendant's submissions to the Court provide 'reasonably detailed' declarations 'describing the agency's actions and the scope of the search,' . . . ."  "Defendant states that [defendant] identified the 1A file attachments as the 'only location where records of this type (emails received by the FBI from an outside source) would likely be located.'"  Responding to plaintiff's argument that he disagrees with defendant's determination, the court finds that "the FBI 'need not knock down every search design advanced by' [plaintiff] to establish the adequacy of its search."  "Because [plaintiff] has not provided any non-speculative evidence that would permit the Court to doubt Defendant's claims that it conducted a reasonable search of the locations most likely to contain responsive records, his arguments fall flat."
   
• Exemption 7, Threshold:  "The agency states that all of the records at issue here . . . were 'compiled for law enforcement purposes only' because the FBI compiled them 'in connection with [its] investigation of bioterrorism attacks,' including its specific investigation [underlying the documents at issue]."  "The Court finds that these submissions satisfy Defendant's burden to establish that the records were compiled for law enforcement purposes."
   
• Exemptions 6 & 7(C):  First, the court holds that "Defendant's motion for summary judgment on the application of Exemptions 6 and 7(C) to 'third parties merely mentioned' is granted."  The court finds that "Defendant has established that there is a distinct privacy interest for this sub-category of individuals."  "The Court agrees with the core part of Defendant's argument:  a government employee who is mentioned in a personal communication in the context of a law enforcement investigation, outside of her official capacity and outside of the context of any official government business, has at least a minimal privacy interest in this personal information."  The court then finds that "[t]he balancing in this case is straightforward because Plaintiff never establishes a public interest in disclosure of the information."  Second, "the Court grants Defendant's motion for summary judgment on its application of Exemptions 6 and 7(C) to both FBI personnel and non-FBI government employees acting in the scope of their duties."  "Based on the FBI's submissions to this Court, it is evident that all of the individuals in the categories at issue here were directly involved in the FBI's investigation . . . and, accordingly, have a strong privacy interest."  "In the face of this strong privacy interest, Plaintiff's arguments fail to provide any counterbalancing considerations."  "Exemption 7(C) balancing test demands identification of a context-specific public interest."  "And for a requester to carry his burden with respect to the identification of such a public interest, he must specifically establish that the 'interest to be advanced is a significant one,' and that the information he seeks 'is likely to advance that interest.'"  "The problem for Plaintiff is that, by saying nothing about the public interest at issue in this instance, he has met none of these requirements."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "the 22-page table of contents ("TOC") and the 16 pages discussing [the subject of the FBI's report] in the FBI's [Interim Major Case Summary ("IMCS")] report" were properly withheld under Exemption 5.  "[H]aving conducted this in camera review, the Court now concludes that the deliberative process privilege shields the 38 pages at issue here."  "Here, the relevant deliberative process is clear:  the IMCS reflects the compilation and distillation of 'input' to 'aid[ ] the investigators in making appropriate decisions to progress the FBI's investigation.'"  Regarding the segregability of the IMCS pages, the court finds that "attention to the context in which the report was drafted reveals why it contains more than 'only those facts' that were seen as important to the IMCS's compilers."  "The IMCS is not just a compilation of facts; to the contrary, it is facts bound up and intertwined with 'assessments, opinions, recommendations, and analyses by the FBI and USPS based on incomplete evidence gathered partially through the investigation.'"  Regarding the TOC, the court finds that "[p]ut simply, the TOC 'reflects an "exercise of discretion and judgment calls,"' . . . about how to synthesize vast quantities of investigative data and organize them in a useful fashion for senior leadership."  "Seen this way, because the TOC is itself such a core component of the overall deliberative process, disclosure of it would reveal 'what materials [agency leadership] considered significant in reaching a proper decision' concerning the investigation."