Elec. Privacy and Info. Ctr v. Dep't of Justice Criminal Div., No. 12-127, 2015 WL 971756 (D.D.C. Mar. 4, 2015) (Rothstein, J.)

Thursday, March 5, 2015

Elec. Privacy and Info. Ctr v. Dep't of Justice Criminal Div., No. 12-127, 2015 WL 971756 (D.D.C. Mar. 4, 2015) (Rothstein, J.)

Re: Request for records concerning government's investigation of WikiLeaks

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

  • Litigation Considerations, Adequacy of Search:  "The Court [holds] that NSD has failed to provide evidence of an adequate search."  "The Court finds that NSD's affidavit does not provide sufficient details to support an adequate search."  The court explains that while "NSD limited its search to only one employee's files" this limitation was "based solely on the lead attorney's representations, and it is not obvious why the lead attorney would know the contents of all the responsive records so as to affirm that they are duplicative of his files or, conversely, that his files are duplicative of all other files."  "Moreover, it does not appear that NSD used any search terms to search its records, or, if it did, NSD does not provide these search terms to the Court."

However, "[t]he Court finds that FBI's search for responsive records was adequate."  "The FBI used the key term WikiLeaks to search its [central records system], but its search efforts did not cease there."  "The FBI then used the results of the [central records system] search to locate the case agents working with potentially responsive material."  "Once identifying the case agents, the FBI requested that these case agents review their files for further responsive documents, specifically referring to the language in Plaintiff's FOIA request."

  • Exemption 7(A):  The court holds that the FBI and Criminal Division (CRM) properly withheld responsive records pursuant to Exemption 7(A).  The court first finds that "[t]he documents generated in the course of investigating the unauthorized release of classified material on the WikiLeaks website were quite obviously related to the FBI and CRM's law enforcement duties to enforce criminal laws and to protect against national security threats."  "Moreover, there is no support for the notion that Defendants' investigation into the unauthorized publishing of classified material on WikiLeaks is pretext and that Defendants are conducting illegal investigations of innocent WikiLeaks supporters."  The court then finds that "the FBI and CRM have determined that the release of information on the techniques and procedures employed in their WikiLeaks investigation would allow targets of the investigation to evade law enforcement, and have filed detailed affidavits in support thereof."  However, the court does find that "[t]o the extent that Plaintiff seeks those already-made public documents, the Court is persuaded that their release will not interfere with a law enforcement proceeding and orders that Defendants turn those documents over."  The court next finds that "[d]espite Plaintiff's urging to the contrary, the release of [similar] Twitter litigation documents does not entitle Plaintiff to the non-public records which may describe the same or similar techniques as those discussed in the Twitter litigation."  "The Supreme Court and the D.C. Circuit have cautioned against allowing 'bits and pieces' of data to be released which 'may aid in piecing together bits of other information even when the individual piece is not of obvious importance itself.'"  "Finally, the Court is not persuaded that the Defendants' investigation is too vague to support an Exemption 7(A) withholding."
  • Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court finds that the Government has amply supported its determination that there is no segregable material."  "The Court, having reviewed the . . . ex parte declaration[s], is persuaded."
  • Litigation Considerations, In Camera Inspection:The court "declines to conduct an in camera review" because "[plaintiff] brings no allegation that Defendants acted in bad faith."  "Moreover, as discussed above, the agencies' public and ex parte declarations provide a sufficient basis to determine that Exemption 7(A) applies to the responsive documents."
Adequacy of Search
District Court
Exemption 7A
In Camera Review
Litigation Considerations
Updated June 18, 2015