Gatson v. FBI, No. 15-5068, 2017 WL 3783696 (D.N.J. Aug. 31, 2017) (Vazquez, J.)

Gatson v. FBI, No. 15-5068, 2017 WL 3783696 (D.N.J. Aug. 31, 2017) (Vazquez, J.)

Re:  Request for certain records concerning plaintiff, thirteen FBI Special Agents, plaintiff's prison cellmates, and certain gang

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  "The Court finds that the categorical description is appropriate in this matter and that [defendant's] declaration is a sufficiently detailed Vaughn index of the categories of withheld documents."  The court relates that "[defendant] explains that the withheld documents relate to ongoing criminal investigations and prosecutions (including of [plaintiff] himself whose appeal remains pending) and that providing a document-by-document description of these records would undermine the Government's interests in maintaining the confidentiality of documents pertaining to currently pending investigations and prosecutions."  The court also notes that "[defendant] indicates that the FBI reviewed records to identify reasonably segregable information[.]"
   
• Litigation Considerations, Adequacy of Search:  "[T]he Court concludes that the search terms and methodology used were sufficient."  First, the court finds that, "[a]lthough Plaintiff claims that the FBI could have included additional search terms of 'names or things' connected to Plaintiff [instead of plaintiff's name, known aliases, and other identifying information], the relevant inquiry is not whether the Government conducted the most expansive search possible or a perfect search."  "Instead, the question is whether the FBI's search terms were reasonably calculated to uncover documents responsive to Plaintiff's request."  "The search terms employed by the government satisfy this burden."  "Additionally, the FBI searched for records pertaining to the time period that Plaintiff specified in his request."  "Therefore, Plaintiff may not logically argue that the timeframes searched were unknown."  "Finally, contrary to Plaintiff's contentions, the FBI did not conduct a manual search of its records, but rather conducted an electronic search of its CRS files."  "Therefore, Plaintiff's argument that the FBI conducted an improper manual search is unsupported by the record."
   
• Exemption 7, Threshold:  The court finds that "the preliminary requirement of Exemption 7 is satisfied."  "[Defendant] certified that the documents requested fall under the FBI's law enforcement purposes because they were amassed during the Government's criminal investigation of [plaintiff] and his accomplices."
   
• Exemption 7(A):  The court finds that, "[h]ere, the Government properly invoked Exemption 7(A)."  "At the time of [plaintiff's] FOIA request, a criminal prosecution was pending in the District of New Jersey for federal crimes relating to interstate transportation of stolen property."  "As of the date of this Opinion, [plaintiff's] appeal of his conviction remains pending."  "Additionally, the release of the requested records could be reasonably expected to cause articulable harm."  "The FBI provided numerous reasons why disclosure of the requested documents would interfere with the pending prosecution and potential prosecutions, including but not limited to, (1) the identification of law enforcement personnel and witnesses who could be targeted for potential intimidation or physical harm, and (2) the improper use of evidence uncovered by the government, including the alteration or destruction of evidence or the creation false evidence."
   
• Exemption 3:  First, the court holds that "the FBI properly withheld grand jury materials pursuant to Exemption 3."  "The FBI withheld records containing names of witnesses and prospective witnesses who were called to testify to the grand jury; the names of companies and their employees who were served with subpoenas to testify; documents identifying records subpoenaed by the grand jury; and other internal workings of the grand jury."  "These are the precise types of grand jury records that fall under Rule 6(e) and Exemption 3."  Second, the court holds that "[certain] documents . . . obtained by [Financial Crimes Enforcement Network] pursuant to the [Bank Secrecy Act] . . . are statutorily exempt from disclosure."  Third, the court finds that defendant properly "invoked Exemption 3 [in conjunction with the Omnibus Crime Control and Safe Streets Act of 1968] 'to protect the request for assistance to support [Title] III wiretap and [Title] III communication analysis.'"  Fourth, the court relates that "the Government invoked Exemption 3 and the Pen Register Statute to withhold documents with information consisting of the identities and phone numbers of the individuals who are subjects of a pen register/trap and trace device, as well as court documents relating to its approval."  The court finds that "[t]hese documents fall under the Pen Register Statute's purview and were therefore properly withheld by the FBI."  Fifth, the court relates that "the FBI asserted Exemption 3 to protect the names and other identifying information of children who were included in records concerning residential burglaries."  The court holds that "these documents were properly withheld[]" under Exemption 3 and the Child Victims' and Witnesses' Act.
   
• Exemption 5, Deliberative Process Privilege:  The court finds that "the FBI properly withheld the Newark Field Office's draft e-discovery request for FBI Headquarters and the proposed strategy and discussion of progress regarding the arrest of persons connected with a Greenwich, Connecticut burglary."  "As to the deliberative process privilege, these documents are predecisional because they were created before a final decision was made as to which electronic documents would be requested or how arrests would take place."  "The documents are deliberative because they contain the opinions, conclusions, and recommendations of FBI personnel."  "If these documents were released, FBI personnel could in the future reasonably hesitate to offer their honest and frank opinions to superiors and coworkers knowing that their opinions could become a matter of public record."
   
• Exemption 5, Attorney Work-Product Privilege:  The court holds that "[t]he Government also properly withheld the draft e-discovery request pursuant to the attorney work-product privilege."  "The documents were prepared by a Newark Field Office Special Agent at the request of an FBI attorney in regard to the criminal matter pending against [plaintiff] and his co-defendants.
   
• Exemptions 6 & 7(C):  The court holds that "the privacy interest in non-disclosure outweighs the public interest in releasing the requested documents."  "The withheld records contain private information concerning government employees, third parties who provided information to the FBI, individuals whose information was referenced in the documents, and people of investigative interest."  "[Plaintiff's] request does not serve the public interest because the requested records do little or nothing to improve the public's understanding of agency operations."  "Conversely, there is a strong interest in not disclosing the private information of government employees, third parties, and victims."  "Therefore, the FBI properly withheld these records under Exception 6."
   
• Exemption 7(D):  The court holds that the FBI properly withheld "records containing third parties who were both impliedly and expressly promised that their identities and the information provided concerning subjects of the FBI investigation would remain confidential."  "As to those who were impliedly promised, [the court notes that defendant] certified that the individuals provided information which, if disclosed, could expose them, as well as their families, to embarrassment, humiliation, and/or physical or mental harm."  "Additionally, other confidential sources consented to a proffer agreement in exchange for an assurance that they would not be fully prosecuted."  "The Court finds that these sources would not have provided information to the FBI if they believed that their identities and the information provided would not remain confidential."  "Revealing such information could potentially cause them significant harm."  "Moreover, the individuals who provided information pursuant to an express promise of confidentiality clearly had an expectation that their identities and the information provided would remain confidential."
   
• Exemption 7(E):  The court finds that defendant appropriately withheld "(1) sensitive case file numbers and subfile names; (2) the modus operandi gang members used to execute burglaries and the law enforcement technique pertaining to the analysis of the burglaries; (3) non-public database search results and the printouts compiled therefrom; (4) information concerning dates and types of investigations; (5) information concerning the installation, locations, monitoring, and types of devices utilized in surveillance; (6) a specific investigative technique and procedure relating to the [Bank Secrecy Act]; (7) tactical information contained in operational plans; (8) the investigative focus of specific investigations; (9) operational directives concerning sensitive investigative techniques and strategies; (10) internal FBI email, intellectual property, and intranet addresses; (11) collection and analysis of information; and (12) computer analysis response team reports and data."  The court analyses each category in turn and finds that all are techniques or procedures and that "documents with this information were properly withheld in order to prevent the circumvention of law."