Elec. Frontier Found. v. DOJ, No. 17-1039, 2019 WL 1714433 (D.D.C. Apr. 17, 2019) (Friedrich, J.)

Elec. Frontier Found. v. DOJ, No. 17-1039, 2019 WL 1714433 (D.D.C. Apr. 17, 2019) (Friedrich, J.)

Re:  Request for records concerning FBI's use of computer technicians as confidential informants

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 7(E):  "Because the FBI has failed to establish that revealing the existence or non-existence of a single document beyond those 'concerning [confidential informants] utilized by the FBI between 2007 and 2016, at the Brooks, Kentucky, Best Buy facility,' . . . will 'reduce or nullify' the effectiveness of this law enforcement technique, . . . the Court will deny summary judgment as to the FBI's partial Glomar response."  The court relates that "[t]he government argues that disclosure would risk the circumvention of the law because 'disclosing whether or not there are responsive documents concerning the FBI's use, training, or recruitment of [confidential informants] at computer repair facilities, other than the Best Buy Brooks, Kentucky facility, or at the Brooks, Kentucky facility outside the 2007–2016 timeframe,' . . . would 'likely reduce the effectiveness' of the technique of using computer repair technicians to identify cyber criminals."  The court finds that, "[i]n this case, disclosing the mere existence – as opposed to the number or type – of any documents would reveal little, if any, information about the nature or frequency of the FBI's use of computer technician informants beyond what the FBI has already disclosed."  "Disclosing the existence of at least one additional document would merely confirm that the FBI has used an informant outside of the 2007–2016 timeframe – but possibly only one – at the Kentucky Best Buy."  "Such a disclosure would not reveal whether the FBI has enlisted informants from any other Best Buy or computer repair store."  "Nor would it reveal how frequently the FBI has developed established relationships with, or obtained evidence from, computer technician informants."
   
• Exemption 7(E):  The court holds that "[t]he FBI appropriately applied exemption 7(E)."  "[T]he Hardy declaration and the FBI's Vaughn index make clear that the information the FBI withheld under exemption 7(E) involves 'non-public investigative techniques and procedures of its informant program, and non-public specific details concerning techniques and procedures that are otherwise known to the public.'"  "Revealing this information would reduce the effectiveness of using informants because, among other things, it 'would provide key insight into the FBI's source vetting standards' and 'enable those wishing to gain the FBI's confidence and pose as a potential FBI [informant] the opportunity to judge what information they should manipulate/mask to avoid discovery . . . and ensure the FBI targets them for recruitment.'"
   
• Litigation considerations "Reasonably Segregable" Requirements:  The court holds that "the FBI appropriately segregated the information protected under exemption 7(E) from non-exempt information."  The court explains that "[defendant] adequately explained the FBI's efforts to segregate the information . . . and the Vaughn index identifies the specific documents that were redacted in full or in part."
   
• Exemptions 6 & 7(C):  "The Court concludes that the FBI must provide additional documentation to enable the Court to balance the individual's privacy interest against the public's interest in disclosure."  The court relates that "EFF cites press reports that suggest at least some degree of public interest in learning about the FBI's use of computer technician informants."  "Also, like the plaintiff in ACLU, EFF could use the disclosed name to review filings and transcripts from the criminal case, which 'could provide further insight regarding the efficacy of the [law enforcement] technique by revealing whether courts suppress its fruits, and [c]ould disclose the standard or standards the government uses to justify [the technique.]'"  "Finally, the information could 'provide facts . . . that would inform the public discussion concerning the intrusiveness of th[e] [technique].'"  "The current record does not permit the Court to determine whether this public interest is sufficiently weighty to overcome the relevant privacy interest."  "The FBI must therefore supplement the record with additional documentation about the contents of the redacted documents to allow the Court to determine the extent of the relevant individual's privacy interest."
   
• Exemptions 6, 7(C), 7(D) & 7(E), Categorical Denial:  The court relates that "[t]he FBI invoked exemptions 6, 7(C), 7(D), and 7(E) to 'categorically den[y] release of the informant files' for the eight confidential informants acknowledged in [another case]."  The court further relates that "[defendant] explained that the files 'could include' ten categories of documents, and [it] provided a 'general description' of the documents in each category."  "[It] then proceeded to broadly assert exemptions 6, 7(C), 7(D), and 7(E) without tying them to any of the defined categories."  The court finds that "Hardy's explanation is insufficient to justify the withholding of the four informant files in their entirety."  "As a threshold matter, it is not clear whether all of the withheld documents fall within the identified categories or whether the FBI is seeking to withhold some documents without any justification at all."  "Even assuming the former, the Court is unpersuaded."