Farahi v. FBI, No. 15-2122, 2022 WL 17338008 (D.D.C. Nov. 30, 2022) (Walton, J.)

Farahi v. FBI, No. 15-2122, 2022 WL 17338008 (D.D.C. Nov. 30, 2022) (Walton, J.)

Re:  Requests for records concerning plaintiff’s “‘immigration removal proceedings’”

Disposition:  Denying defendant’s motion for summary judgment

• Exemption 7, Threshold:  “[T]he Court concludes that the defendant has satisfied the threshold showing that the records sought by the plaintiff are law enforcement records for purposes of Exemption 7(A).”  “Because the defendant is a law enforcement agency, the Court is thus ‘more deferential to [its] claimed purpose[s] for the particular records[.]’”  “Here, the defendant states that it ‘generated the responsive records in furtherance of investigations [into] violations of national security and international terrorism[,]’ including ‘pending law enforcement proceedings and the [plaintiff’s] association with individuals directly involved in such violations.’”
   
• Exemption 7(A):  First, “the Court concludes that the defendant has ‘define[d] its categories functionally.’”  “[Defendant’s] Declaration describes both categories, providing a full explanation of the types of records within each main ‘functional category[.]’”  “Accordingly, the Court concludes that the defendant has adequately ‘divid[ed] the withheld documents into functional categories[,]’ . . . which permits the Court to ‘trace a rational link between the nature of the document and the alleged likely interference’ . . . .”
  
  “Second, the Court concludes that the defendant ‘conduct[ed the requisite] document-by-document review in order to assign documents to the proper category.’”  “[Defendant’s] Declaration explicitly states that the defendant ‘reviewed each responsive document in this case to determine whether Exemption 7(A) and any other exemptions appl[ied.]’”
  
  “Third and finally, the Court is also convinced that the defendant has adequately ‘explain[ed] . . . how the release of each category would interfere with enforcement proceedings.’”  “[T]he Court is convinced that the defendant has adequately demonstrated that the release of the categorized ‘[e]videntiary [and] investigative materials[,]’ . . . would ‘interfere with enforcement proceedings . . .’ . . .”  “According to [defendant’s] Declaration, the release of ‘confidential source and witness statements[,]’ which ‘contain information obtained from confidential informants, records custodians, and other third party individuals who have knowledge of the criminal activities at issue[,]’ could subject ‘the witnesses and/or confidential sources who have chosen to cooperate with law enforcement . . . to retaliation, intimidation, or physical or mental harm.’”  “In turn, these potential consequences ‘could have a chilling effect on the [defendant’s] future investigative efforts and prosecutions in this and other cases’ because ‘potential witnesses and/or confidential sources might fear exposure and reprisals from the subjects of th[ese] investigations[.]’”  “Similarly, according to [defendant’s] Declaration, the ‘[r]elease of records documenting and detailing the exchange of information among law enforcement partners’ could ‘disclose investigative information developed by various agencies’ that ‘would identify the investigative interest in particular individuals’ and ‘subject witnesses and confidential sources to potential harassment, intimidation[,] and physical or mental harm.’”  “And, [defendant] represented that the release of ‘[i]nformation concerning physical and documentary evidence[,]’ including Federal Grand Jury subpoenas, search warrants, and/or correspondence between third parties . . . could be detrimental to [the] success of [ ] pending and prospective enforcement proceedings by permitting subjects to formulate a strategy as to how the evidence could be contradicted in [c]ourt.’”  “Furthermore, [defendant’s] Declaration states that releasing ‘communications [that] permit the [defendant] and/or other agencies to monitor the progress of [an] investigation and to facilitate its conduct[ ]’ would provide ‘detailed information about the investigative activities[,] . . . potential witnesses[,] and confidential sources[;]’ as well as ‘background information about third party individuals, the origin of pertinent information that ties [these individuals] to the investigation, their connection with the subjects, and their relationship [to] the pending investigation.’”  “According to [defendant’s] Declaration, this information, if released, would ‘reveal or confirm’ (1) ‘the cooperation of other local, state, or federal agencies in the investigation[;]’ (2) ‘the investigative steps taken to obtain witness and confidential source interviews[;]’ (3) the ‘techniques and investigative methods used to compile/solicit information from various sources[;]’ (4) ‘the perceived weaknesses in the investigation[;]’ and (5) ‘the nature and scope of the pending investigations.’”  “These representations, in conjunction with the classified declaration and the exhibits submitted with it, adequately demonstrate that disclosure of the evidentiary and investigative materials could, in ‘particular [and] discernible way[s], disrupt, impede, [and/]or otherwise harm the enforcement proceeding[s]’ . . . .”
  
  “Similarly, the Court concludes that the defendant has adequately demonstrated that the release of the categorized ‘administrative materials[,]’ . . . would ‘interfere with enforcement proceedings . . . ’ . . . .”  “According to [defendant’s] Declaration, because the subjects of the defendant’s ‘ongoing investigations . . . know[ ] the details surrounding the potential criminal activities, the identities of potential witnesses, and the direct and circumstantial evidence of the potential criminal activities[,]’ they ‘could [ ] use the released information to their advantage to alter [or] destroy [evidence;] create false evidence[;] intimidate potential witnesses[; and] adjust patterns of behavior to avoid detection and/or mislead investigations.’”  “Although the defendant’s declarant provides this rationale generally with respect to the release of any withheld information to the plaintiff, . . . he also represents that ‘[i]n many instances, administrative information is contained in correspondence or documents that also fall into other categories[,]’ . . . .” and ‘[t]herefore, release of details with respect to this category of information would also reveal the investigative interests of the FBI and could enable suspects to discern a “road map” of the investigations[.]’”
  
  “Next, the Court considers whether the enforcement proceedings that would be impacted by the release of these documents are ‘pending or reasonably anticipated.’”  “[B]ased on the Court’s review of [defendant’s] Declaration, as well as the classified and ex parte declaration and accompanying exhibits, the Court concludes that the defendant has seemingly ‘met its burden to show that the records relate to “enforcement proceedings that are . . . pending or reasonably anticipated.”’”  “[Defendant’s] Declaration states that ‘[m]aterial responsive to [the p]laintiff’s request is located in [the] files of ongoing investigations’ and ‘[r]elease of any information, other than public source information from these files, could reasonably be expected to interfere with these pending criminal law enforcement proceedings, as well as potential enforcement proceedings such as spin-off investigations and/or prosecutions that may result from the investigations.’”  “Furthermore, according to [defendant’s] Declaration, ‘[t]he ongoing investigations are related to [the plaintiff] and others, and release of the requested information would allow such individuals to critically analyze documents concerning these international terrorism investigations.’”
  
  “Accordingly, for the above reasons, and based on the Court’s review of [defendant’s] Declaration and the classified declaration and accompanying exhibits submitted ex parte to the Court, the Court concludes that the defendant has seemingly withheld the requested information properly pursuant to Exemption 7(A).”  “The Court’s ruling is inconclusive because a significant time has passed since the filing of [defendant’s] Declaration and the classified ex parte declaration on October 31, 2019, due to the size of the Court’s docket.”  “And, because ‘[t]he [relevant] proceeding [under Exemption 7(A)] must remain pending at the time of [the Court’s] decision, not only at the time of the initial FOIA request[,]” . . . the Court will deny the defendant’s motion without prejudice and require the defendant to reassess whether the relevant ‘enforcement proceedings’ remain ‘pending or reasonably anticipated[,]’ . . . as described in the declarations submitted to the Court.”  “Once the defendant has completed this review, it may file a renewed motion for summary judgment based on either Exemption 7(A), if the relevant proceedings remain pending or reasonably anticipated, or on the other FOIA exemptions asserted in the defendant’s motion.”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  “[F]or reasons that cannot be stated on the public record, the Court concludes that it requires additional information in order to issue a ruling on the merits regarding whether the defendant satisfied its segregability obligations under the FOIA.”  “Accordingly, the Court will also deny the defendant’s motion without prejudice as to the segregability issue, and will issue a separate, sealed, and ex parte order setting forth its ruling in detail.”