Gellman v. DHS, No. 16-635, 2020 WL 1323896 (D.D.C. Mar. 20, 2020) (Cooper, J.)

Gellman v. DHS, No. 16-635, 2020 WL 1323896 (D.D.C. Mar. 20, 2020) (Cooper, J.)

Re:  Request for records concerning plaintiff

Disposition:  Denying plaintiff's motion for in camera review; granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  First, "the Court will enter summary judgment for the Government with respect to its decision to withhold individual, non-responsive emails."  The court finds that "an agency may define individual emails within a chain as separate records, as long as that decision (1) does not deviate from its prior position in responding to a particular FOIA request and (2) is reasonable under the circumstances."  "OIP has satisfied both requirements."  "The fact that OIP produced multiple emails within a chain on a single page with a single BATES stamp does not affect this conclusion."  "During its search, OIP collected emails within a chain in continuous documents, with multiple emails often appearing on a single page."  "After it defined each email as a record, it processed for production only the responsive ones."  "Th[e] production included pages with both responsive email records and redacted non-responsive email records."  "Because agencies 'in effect define a "record" when they undertake the process of identifying records that are responsive to a request,' . . . the agency is not locked into defining the scope of a record according to the form in which the records are collected."  The court also finds that "defining each email as a record was reasonable in this case."  "The agency located responsive emails related to [plaintiff's] FOIA request within email chains, and included additional emails, as necessary, to provide context."  Additionally, the court finds that "while it may usually be true that email replies reflect a natural progression of conversation on a unified topic, it is not always true."  "There are some circumstances where a single email chain contains discussion of unrelated topics that may reasonably be delineated into individual records."  Overall, the court finds that "it was reasonable for OIP to decide, while processing this FOIA request, that each individual email constituted a record."  "Indeed, a contrary conclusion would burden the agency with having to process emails on topics wholly unrelated to the subject of the FOIA request – including ascertaining whether any exemptions apply – which would hinder its ability to timely process requests and produce non-exempt, responsive documents to waiting requesters."
  
  Second, "the Court will enter summary judgment for the Government on the redactions of non-responsive records within news compilations."  The court explains that "[b]ecause [plaintiff] only sought records that mention his name, because '[e]ach article written by Plaintiff was deemed responsive and processed,' and because '[o]nly those articles not written by [plaintiff], or pertaining to him in any way, were deemed non-responsive,' . . . the Government met its burden to show that this definition of a record was reasonable."
   
• Exemption 1 & Litigation Considerations, Vaughn Index/Declaration:  First, "[u]pon carefully reviewing the declaration to consider the agency's justifications for these withholdings, the Court now finds that the ex parte declaration sufficiently satisfies the Government's burden under Exemption 1."  "It will therefore enter summary judgment for Defendants on this issue and deny Plaintiff's motion for in camera review of the withheld documents."  Second, regarding the public declarations, the court finds that "ODNI has provided enough information in the descriptions of seven of the categories for the Court to determine whether the records were properly withheld."  The court finds that "ODNI justifies its Exemption 1 withholdings . . . pursuant to sections 1.4(c) and 1.4(d) of Executive Order 13,526, which cover classified information concerning 'intelligence activities [and] intelligence sources or methods' or 'foreign relations or foreign activities of the United States.'"  "ODNI justifies its Exemption 3 withholdings on the ground that the documents 'contain "intelligence sources and methods" or [their] disclosure would reveal otherwise protected information.'"  "The Court concludes that the declaration's descriptions of seven of the eight categories – all but category F – 'support an inference' that the documents 'logically and plausibly' include information about intelligence sources and methods."  "Documents discussing anticipated or actual unauthorized disclosures of sensitive national security information in the press could confirm the existence or accuracy of this information, which in turn could expose intelligence methods and sources."  The court finds similarly regarding several partially released documents.
   
  "In contrast, the description of category F – information revealing 'the IC's method for responding to the possible disclosure of sensitive information in media reports, particularly discussions of how to respond to reporters' – does not alone support an inference that the documents logically and plausibly include information that would reveal intelligence sources and methods."  "In support of withholding of documents in category F, ODNI relies solely on a statement in its declaration that avers, without any further detail, that methods for responding to the media 'concern an intelligence method.'"  "But that justification merely restates the standard . . . ."  "The Government, therefore, must either produce the documents or provide the Court with more information about the documents in category F to enable it to decide whether they were properly withheld."  The court finds similarly regarding several documents withheld in part.
   
• Exemption 1; Exemption 3 & Litigation Considerations, Vaughn Index/Declaration:  The court holds that "NSA fails to provide much description of the documents at all, categorically or otherwise."  "Its declaration merely states that 'most of the documents withheld in full by NSA are currently and properly classified,' . . . and that disclosure would reveal information about its signals intelligence . . . activities, 'which implicate both the Agency's core functions and activities, as well as intelligence sources and methods,' . . . ."  "These rather sparse descriptions do not pass muster under Exemption 1 because they 'are simply too broad and conclusory to allow the Court to perform the type of "searching de novo review’ required by the governing precedent.'"  "However, [the court finds that] the documents are properly withheld under the broader language in Section 6 of the National Security Act, which protects from disclosure 'any information with respect to the activities' of the NSA."  The court finds that "[a]ll the NSA is required to do is declare that the emails would reveal information about its activities."  "The NSA has done so here, and the Court, applying the presumption of good faith, will enter summary judgment for the Government with respect to those records."
   
• Exemption 4:  The court holds that "OIP withheld (at ODNI's request) 'copyrighted bulletins summarizing intelligence news reports which are prepared, pursuant to contract, by a non-governmental outside vendor for distribution to members of the ODNI workforce.'"  The court finds that "[t]he bulletins here are prepared for ODNI under contract and there is no suggestion in the record that they are readily available outside of the agency."  "They are thus 'closely held' by the vendor."  "And even though there is no evidence in the record of an express assurance by ODNI to the vendor that the information will remain confidential, the absence of such an assurance in this case does not change the outcome."  "Therefore, the Court will enter summary judgment for the Government regarding its withholding of the 'formatting, design, and organization of the bulletins.'"  "Even so, [plaintiff] argues that the formatting, design, and organization can simply be redacted so that the substance of the bulletins can be released."  "The Government failed to respond to this argument in its briefing."  "Indeed, there are other examples of news bulletins disclosed to [plaintiff] where the Government has provided the text of the responsive clippings."  "Seeing no reason why the text of the individual articles themselves would be exempt, the Court therefore will enter summary judgment for Plaintiff as to the substance of the responsive articles contained in bulletins and order the Government to provide that information to [plaintiff] in redacted form."
   
• Exemption 5, Deliberative Process Privilege:  First, regarding responses and reactions to the press, "[t]he Court will . . . deny summary judgment to both parties and order the Government to (1) review all the documents withheld under Exemption 5 to ensure they are properly withheld consistent with this opinion, and, should it maintain its withholdings, (2) renew its motion with supplemental declarations providing more detail about the deliberations it seeks to protect."  The court finds that "documents containing discussions of how to respond to press inquiries are protected by the deliberative process privilege."  However, the court also finds that "[i]nternal emails seeking and expressing reactions to news articles without an articulated future decision, in contrast, are not properly withheld under the deliberative process privilege."  "Mere internal reactions to the media do not relate to a particular decision by the agency."  The court finds that "[t]he problem here is that the Government has not given the Court enough information to conduct a de novo review of its withholdings."
  
  Separately, "the Court finds that [the] withholding [of "'information in an email between an FBI attorney, DOJ components and other FBI personnel discussing matters pertaining to the application of an investigative technique'"] was proper under Exemption 5."  The court finds that "[t]he agency has thus identified decisions to which the email pertained and averred that it was a part of specific decisions related to the investigation."
   
• Exemption 7, Threshold:  The court finds that "'[a]gencies classified as law enforcement agencies' – like the FBI – 'receive a special deference in their claims of law enforcement purpose.'"  "The Government has met its burden to show that all the records withheld under Exemption 7 were compiled for law enforcement purposes."
   
• Exemption 7(A):  "The Court has carefully reviewed the ex parte declaration and finds that 'viewed in light of the appropriate deference to the executive on issues of national security,' . . . it sufficiently supports the application of Exemption 7(A) over these records."
   
• Exemption 7(E):  "The Court finds the Government has adequately justified the assertion of Exemption 7(E) over those documents and, accordingly, will enter summary judgment in its favor."  The court relates that "the Government has declared that while 'the techniques may be known by the public in a general sense,' 'the technical analysis of the[ ] sensitive law enforcement techniques' is not."