Freedom of the Press Found. v. DOJ, No. 17-9343, 2020 WL 5992282 (S.D.N.Y. Oct. 9, 2020) (Koeltl, J.)

Freedom of the Press Found. v. DOJ, No. 17-9343, 2020 WL 5992282 (S.D.N.Y. Oct. 9, 2020) (Koeltl, J.)

Re:  Request for records concerning "restrictions imposed by statute, regulation, or the Constitution on government surveillance targeting members of the news media, or otherwise implicating the freedoms of speech, association, or press"

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiffs' motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The court holds that "[t]he government has failed to sustain its burden for demonstrating that DOJ-CRIM properly withheld portions of a PowerPoint slide and an official form, pursuant to FOIA Exemption 5."  "By the DOJ-CRIM's own description, the PowerPoint presentation contains 'internal guidelines,' intended to instruct staff members on their obligations pursuant to [28 C.F.R.] Section 50.10 for certain investigations and prosecutions that involve gathering information from, or records of, or questioning, arresting, and charging 'members of the news media.'"  The court relates that "the government has argued that the slide at issue represents the 'personal opinions' of the slide's author, and that the slide reveal 'interim steps' of the agency's decision-making process."  The court finds that "[b]oth arguments seek to stretch this Exemption too far."  "While its earlier drafts may have merely reflected the personal opinions of the slide's author, the final version cannot reasonably be so limited."  "It was communicated to staff members with a warning that failure to follow its guidance could result in reprimand; as such, it cannot be construed as the subjective views of only an individual staff member."  "Further, although the guidance in the slides may assist with future decision-making applying the policy to specific scenarios, the policy itself and management's expectations concerning its application have already been determined."  "Put simply, the training slide deck at issue 'is not a step in making a decision; it is a way to disseminate a decision already made.'"  "Similarly, the News Media Policy Consultation form, of which the DOJ-CRIM has withheld a portion, is an 'online form' to be 'completed by DOJ attorneys consulting with the [DOJ-CRIM] pursuant to 28 C.F.R. § 50.10.'"  The court finds that "the DOJ-CRIM's assertion of the deliberative process privilege with respect to the form itself stretches the exemption too far."  "The final, operative version of the News Media Consultation form cannot reasonably be considered as 'the personal opinion[ ] of the writer'; it is a standardized form document including instructions with which DOJ staff members are expected to comply, in at least a certain set of circumstances."  "While the way in which the information submitted by Department staff members as part of Media Policy Consultations is weighed, analyzed, and assessed might be protected under Exemption 5, the information that the agency has already decided staff members must submit, as part of the consultation process, is not."
   
• Litigation Considerations, Adequacy of Search:  The court holds that "[t]he Government has demonstrated that the FBI's search in response to the plaintiff's FOIA request was adequate and that the FBI used reasonable efforts to respond completely to the plaintiffs' requests."  "In this case, the FBI's declarations . . . demonstrate that the FBI undertook a search 'reasonably expected to produce the information requested.'"  Responding to plaintiff's arguments, the court finds that "'[m]ere speculation that as yet uncovered documents may exist' is not enough to undermine the sufficiency of the FBI's search, . . . particularly for a narrow category of documents."  "Further, the plaintiffs have offered no authority which requires agencies to name each custodian searched, and the FBI provided a declaration with sufficiently detailed descriptions about how it approached the search and identified which staff members might have access to responsive records."
   
• Exclusions:  The court holds that "plaintiffs misconstrue what would be required of the FBI, if it were to have relied upon Section 552(c) to exclude records from the search."  "The FBI has provided an ex parte declaration setting forth an explanation regarding whether the exclusion was relied upon."  "Nothing more is required."  "Upon review of the FBI's ex parte in camera declaration, the Court has concluded that the objections raised by the plaintiffs with respect to any potential invocation of Section 552(c) are unavailing."
   
• Exemption 7(E):  The court holds that "[t]he FBI has met its burden of demonstrating how the information withheld solely pursuant to Exemption 7(E) was both sufficiently related to law enforcement techniques, processes, or guidelines, such that the information was properly withheld."  "First, the FBI withheld portions of eight PowerPoint slides on First Amendment and Media Leaks, and the plaintiffs challenge that decision."  "The government has asserted that such withheld portions contained information that would 'essentially reveal the FBI's "playbook" or strategies utilized in specific circumstances and provide criminals and terrorists with information on the FBI's capabilities and vulnerabilities' for detecting and combating certain acts."  "Contrary to the plaintiffs' conjectures, such information is related to 'how law enforcement officials go about investigating a crime.'"  "Second, the plaintiffs also challenge the FBI's withholding of information from two additional training slides on social media tools, solely pursuant to Exemption 7(E)."  "[Defendant's] Declaration explained that those slides were withheld because they included 'the identi[t]y of, and the capabilities and limitations (including restrictions) related to the use of certain non-public investigative tools and the techniques by which they are utilized (including any results),' and that such 'cyber products' are presently used by 'law enforcement to query information and develop investigative leads from a variety of source data.'"  "[Defendant] further explained plausibly:  'Disclosure of the capabilities and/or vulnerabilities of the data that can be collected through the use of these tools and in specific situations, could enable criminals to employ countermeasures to avoid detection.'"  The court also finds that "[t]he general existence of social media surveillance capabilities may be 'well known,' without the specific means of such surveillance being public knowledge."  "Third, the plaintiffs challenge the FBI's decision to withhold portions of two policy guides: the Domestic Investigations Operations Guide ("DIOG") and the Counterintelligence Division Policy Directive and Policy Guide ("CDPG")."  "As the government persuasively notes, the DIOG and CDPG relate specifically to the FBI's 'law enforcement and national security "playbooks."'"  "Further, to the extent that withheld information may relate to administrative approval procedures or prerequisites, the FBI's declaration has logically noted that such descriptions would 'identify the procedures, techniques, and strategies' employed by the agency, including 'sensitive unknown investigative techniques' and 'uses of these specific techniques and strategies.'"  "It is reasonable to conclude that even a discussion of stages of administrative approvals would include discussion of both the techniques and strategies being approved, as well as their relative strengths and vulnerabilities."  "Moreover, even if the withheld portions are better understood as 'guidelines,' rather than 'techniques or procedures,' [defendant's] Declaration provides sufficient support to demonstrate that disclosure of such information could reasonably be expected to jeopardize ongoing FBI investigations and operations and assist those seeking to violate or circumvent the law."
   
• Exemptions 1, 3 & 7(C):  The court relates that "plaintiffs also challenge the withholding of information on four pages of records . . . , within two documents (titled 'Best Practices for Media Policy' and 'National Security Letters') pursuant to a combination of Exemptions 1, 3, and 7(E)."  The court finds that "[w]ith respect to the information withheld on these pages, the FBI has provided a sufficiently detailed declaration explaining the appropriateness of each of the Exemptions."
  
  "Regarding the application of Exemption 1, [defendant's] Declaration explained that the FBI withheld classified information . . . regarding detailed intelligence activity information on specific individuals or organizations of interest, properly classified at the 'Secret' level pursuant to E.O. 13,526 § 1.4(c)."  "With respect to the withheld information on these three pages, [defendant] represented that disclosure of the information could reveal actual intelligence activity or methods used by the FBI against specific targets, intelligence-gathering capabilities, and certain 'criteria, triggers, limitations, requirements and prerequisites that precede the use of the technique or method.'"  "Further, [defendant] noted that [certain pages] also involved classified information relating to foreign relations or activities of the United States, such that it was appropriately classified as 'Secret' pursuant to E.O. 13,526 § 1.4(d)."  "[Defendant's] Declaration also asserted that [other information was] properly withheld under Exemption[] 3, because the pages contained detailed intelligence sources and methods, within the meaning of the Section 102A(i)(1) of the National Security Act."  "For [one page], the FBI has asserted that although it contains unclassified information (and thus, is not eligible for Exemption 1), such information relates to intelligence sources and methods, and descriptions of law enforcement techniques, such that it is was properly withheld pursuant to Exemptions 3 and 7(E)."
  
  "Finally, the FBI also asserts that information was withheld pursuant to Exemption 7(E) from [certain pages] because the information contained details about 'investigative methodology' and 'strategy for specific type[s] of investigations[s].'"  "As noted above, [defendant] describes how disclosing the 'FBI's analysis, including the levels of review required in specific investigative situations' and 'anticipated obstacles and potential hurdles to investigation' could enable criminals to 'hamper or circumvent the FBI's investigative techniques.'"  "[Defendant] further justified withholding information from page 1054, because it contained '[s]ensitive file numbers' as well as 'internal secure e-mail and intranet web addresses.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "the FBI has demonstrated sufficiently that it made reasonable efforts to segregate exempt information from non-exempt information."  The court notes that [defendant's] Declaration asserts that the agency undertook a careful review, in which each page was 'individually examined', followed by a 'secondary review' to confirm that withholdings were either 'exempt itself or so intertwined with non-exempt information that segregation of the non-exempt information was not reasonably possible without revealing exempt information or leaving nothing but meaningless words or sentence fragments.'"  "A review of the redacted documents that were produced shows the redaction process was done carefully, and line-by-line."