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Freedom of the Press Found. v. DOJ, No. 15-03503, 2017 WL 952885 (N.D. Cal. Mar. 13, 2017) (Gilliam, Jr., J.)


Freedom of the Press Found. v. DOJ, No. 15-03503, 2017 WL 952885 (N.D. Cal. Mar. 13, 2017) (Gilliam, Jr., J.)


Re: Records concerning procedures for issuing national security letters ("NSLs") to obtain information regarding any media member from January 2009 to present


Disposition: Granting defendant's motion for summary judgment

  • Litigation Considerations, Adequacy of Search: "Because Plaintiff’s speculation cannot overcome the FBI's reasonably detailed, non-conclusory declarations, the Court holds that the FBI has conducted an adequate search for responsive records." "The Court finds the Hardy Declarations establish that the FBI conducted an adequate search that was reasonably calculated to uncover all relevant documents." "While the FBI's search may not have been perfect, Plaintiff was 'entitled to a reasonable search for records, not a perfect one.'" Additionally, the court finds that "[p]laintiff's '[s]peculative claims about the existence of additional documents are insufficient to rebut the presumption of good faith' to which [defendant's] declarations are entitled."
  • Exemption 1: "The Court finds that the FBI has carried its burden to demonstrate that it properly classified the seven withheld pages under Exemption 1." "[Defendant's] Declaration first explains the procedural and substantive requirements with which [defendant] complied in order to properly withhold information under Exemption 1." "Next, in addition to describing the general justifications for shielding intelligence sources and methods from public disclosure, the Declaration explains the specific rationale for withholding the relevant seven pages." "[Defendant] attests that the withheld pages detail intelligence activities or methods that are still used by the FBI today to gather information." "[Defendant] further elaborates that the withheld intelligence activities or methods contain information gathered by the FBI on a specific type of individual or organization of national security interest." "Examined in context, [defendant] determined that the withheld information could reasonably be expected to cause serious damage to national security as it would, for example, reveal the breadth of the FBI's intelligence on a specific target."
  • Exemption 3: "The Court is similarly satisfied that the . . . records [withheld under Exemption 1] would disclose intelligence sources and methods." The court relates that at issue is the Section 102A(i)(1) of the National Security Act of 1947." The court finds that "the detail provided under Exemption 1 demonstrates that the FBI also properly withheld [certain information] under Exemption 3." "[Defendant] states that the withheld pages detail intelligence activities or methods that are still used by the FBI today and that the relevant pages contain information gathered by the FBI on a specific type of individual or organization of national security interest."
  • Exemption 5, Deliberative Process Privilege: The court holds that "[the withheld] documents are both predecisional and deliberative, and thus fall squarely within the deliberative process privilege." The court explains that the withheld records "[were] a draft in which 'FBI employees were engaged in deliberate comments in order to help formulate the FBI's policies concerning how to conduct cyber investigations[,]'" "draft operational directives," emails "about revising [certain] Guidelines, including discussions of the legal implications of certain interpretations and applications of the guidelines[,]" "[a]nd . . . withheld . . . Guidelines [which] were a red-lined draft with 'comments, suggestions and proposed updates in the margin of the documents.'" Responding to plaintiff's arguments, the court finds that "[defendant] need not disclose the specific comments or how the final policies ultimately changed in light of such feedback because that would create an end-run around the exemption." Also, the court finds that "general allegations of misconduct are insufficient to overcome the deliberative process privilege because 'disproving the general, substantive allegations of misconduct is not the government's obligation in FOIA litigation.'"
  • Exemption 5, Attorney-Client Privilege: The court "finds that Defendant has provided sufficient detail to demonstrate that the privilege applies to the withheld documents." "Defendant explained that the withheld information involved advice solicited from or given by the OGC to FBI employees regarding the issuance of NSLs and their use as an investigative technique." Additionally, the court finds that "[a] PowerPoint presentation in particular was a training tool for employees on the use of NSLs." Responding to plaintiff's argument, the court finds "[t]hat some of the documents were not marked confidential is simply inapposite."
  • Exemption 7(E): "[T]he Court finds Defendant has met its burden and properly withheld documents under Exemption 7(E)[.]" "Defendant described with particularity that the withheld documents all contained non-public information about the FBI's investigative techniques and procedures." "These pages not only identified NSLs as an investigative technique, but also described information such as the circumstances under which the techniques should be used, how to analyze the information gathered through these techniques, and the current focus of the FBI's investigations." The court also finds that "[p]laintiff misreads the statute in demanding an explanation for how disclosure of these techniques would harm the FBI's interests."
  • Waiver: The court finds that "although Plaintiff has pointed to an unclassified version of [one appendix], it has missed the critical step of specifying how the material being withheld 'matches' any previously disclosed material." "Without more specificity, the Court cannot conclude that Defendant waived its ability to assert any FOIA exemptions."
  • Litigation Considerations, "Reasonably Segregable" Requirements: "Although the segregability paragraph is boilerplate, the Court finds that Defendant has met its burden through its tailored explanations of the withheld documents." "Defendant conducted an extensive review of the documents in question, including 'a line by line review of the responsive records.'" "Defendant also provided a description as to why it withheld particular documents – and even why it withheld particular pages – in whole or in part following that review." "Defendant similarly avers that it 'has made every effort to provide plaintiff with all material in the public domain and has taken all reasonable efforts to ensure that no segregable, nonexempt portions were withheld from the plaintiff.'" "Plaintiff's only argument in response is that the sheer volume of pages withheld under the deliberate process doctrine 'suggests that the FBI likely has failed to make an adequate effort to segregate non-exempt material from exempt material, as FOIA requires.'" The court finds that "[t]he question is not whether Defendant withheld numerous pages, but rather whether they were properly withheld and segregated."
  • Litigation Considerations, In Camera Inspection: "The Court finds that in camera review is unnecessary here as Defendant already provided sufficiently detailed factual information in support of its exemptions[.]"
Court Decision Topic(s)
District Court opinions
Exemption 1
Exemption 3
Exemption 5
Exemption 5, Attorney-Client Privilege
Exemption 5, Deliberative Process Privilege
Exemption 7(E)
Litigation Considerations, Adequacy of Search
Litigation Considerations, In Camera Inspection
Litigation Considerations, “Reasonably Segregable” Requirements
Waiver and Discretionary Disclosure
Updated December 13, 2021