Elec. Privacy Info. Ctr. v. FBI, No. 14-01311, 2017 WL 680370 (D.D.C. Feb. 21, 2017) (Mehta, J.)

Elec. Privacy Info. Ctr. v. FBI, No. 14-01311, 2017 WL 680370 (D.D.C. Feb. 21, 2017) (Mehta, J.)

Re: Request for unpublished privacy assessments designed to evaluate whether information technology systems effectively protected sensitive personal information

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 "summary judgment cannot be entered for the FBI because the record does not contain sufficient information for the court to assess whether the agency conducted a search reasonably calculated to uncover all responsive records." The court finds that "[defendant's] Declaration falls short of being 'a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials . . . were searched.'" "The declaration does not, for instance, say whether . . . staff searched paper files, electronic files, or both." "If it searched electronic files, then the declaration does not say what search terms were used." "Nor does it identify the persons . . . who most likely possessed responsive materials." "A declaration lacking such basic facts does not satisfy an agency's burden to demonstrate the adequacy of its search." "The court, however, will permit the FBI to supplement the record to cure the deficiencies and to renew its motion for summary judgment as to the adequacy of its search."
   
• Exemption 7, Threshold: "[T]he court concludes that the FBI has not established that the [Privacy Impact Assessments ("PIAs") and Privacy Threshold Analyses (PTAs")] meet the threshold 'compiled for law enforcement purposes' requirement under Exemption 7(E)[.]" The court finds that "[defendant's declaration], without more, is insufficient to establish that the withheld materials were compiled for law enforcement purposes within the meaning o FOIA." "[Defendant] devotes most of its attention to establish a single, generic point: The FBI uses various technologies to carry out its law enforcement duties." "No one disputes that fact." However, the court finds that "[defendant's] Declaration does not adequately explain how or why the PTAs and PIAs are created or used to enforce the law." "It tells the court nothing about the connection between the contents of the assessments and the agency's law enforcement function." "Rather, the declaration simply asserts, without any elaboration, that there is some unspecified 'nexus' between the privacy assessments and the agency's law enforcement responsibilities." "Such a conclusory assertion does not enable the court to conduct a de novo review of the FBI's withholdings under Exemption 7(E)." "None of this should be taken to mean that the privacy assessments required by the E–Government Act do not, in theory, have a rational nexus to the act of enforcing the law." "[Defendant's] Declaration, however, draws no such connection between the privacy assessments requested by Plaintiff and the FBI's law enforcement function, and the court will not recognize the propriety of the FBI's withholdings based on an argument the agency has not made." "The court, however, will allow the FBI to supplement its declaration so that the court can determine whether Exemption 7(E) applies to the withheld information."
   
• Litigation Considerations, Vaughn Index/Declaration: The court cautions defendant that "[t]he heavy use of technical jargon makes it difficult, at least for this court, to discern precisely what 'techniques and procedures' the release of the withheld materials would disclose." "Likewise, saying that disclosure of withheld information 'could' enable hackers to infiltrate 'the FBI's internal computer systems' is simply a conclusory statement, unsupported by any facts." "The court does not mean to diminish the difficulties attendant to describing technology systems and concepts to a non-technical audience." "Nevertheless, those descriptions cannot be written as if the court possesses an advanced degree in computer science." "Unfortunately, it does not." "Thus, when the FBI revises its declaration, the court urges the agency to use less jargon and opt instead for plain language that will more easily enable the court to determine if the requirements of Exemption 7(E) are met."
   
• Exemption 5: The court relates that, "[i]n the Joint Status Report, Plaintiff also indicated its intention to challenge the FBI's invocation of Exemptions 5 and 7(D)." "Plaintiff’s Motion, however, does not respond to the agency's arguments concerning Exemption 5." "Accordingly, the court grants summary judgment in favor of the FBI as to the FBI's reliance on that exemption."