Holmes-Hamilton v. FBI, No. 21-2927, 2024 WL 3924558 (D.D.C. Aug. 23, 2024) (McFadden, J.)

Holmes-Hamilton v. FBI, No. 21-2927, 2024 WL 3924558 (D.D.C. Aug. 23, 2024) (McFadden, J.)

Re:  Requests for records concerning investigatory materials that Dominican Republic law enforcement either shared with or requested from the FBI, regarding several Americans who died mysteriously on vacations in the Dominican Republic

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiffs’ cross-motion for summary judgment

• Exemption 7, Threshold:  The court relates that at issue are certain toxicology test results.  Regarding the threshold, the court holds that “Plaintiffs read Exemption 7’s threshold requirement too narrowly.”  “While the FBI itself may not have been investigating the deaths, it was aiding foreign authorities in their investigation.”  “This satisfies the ‘nexus’ requirement, especially considering that the statutory text of Exemption 7 ‘makes no distinction between foreign and domestic enforcement purposes.’”  “In any case, where a law enforcement agency seeks protection of documents compiled for law enforcement purposes, the Court is ‘more deferential.’”  “And given the toxicology reports were used for a ‘law enforcement purpose’ – aiding in the investigation of mysterious deaths – the FBI is entitled to deference.”  “So it satisfies Exemption 7’s threshold requirement.”

• Exemption 7(D):  The court relates that “[t]he FBI withheld the requested toxicology reports under both Exemption 7(D), the confidential source information exemption . . . and Exemption 7(E), the law enforcement techniques and procedures exemption . . . .”  Regarding Exemption 7(D), the court finds that “the FBI fails to explain how the toxicology reports fit within Exemption 7(D)’s specific textual constraints.”  “To start, the identity and involvement of neither the FBI nor Dominican authorities have ever been ‘confidential.’”  “The FBI was never bashful about its assistance to the investigation.”  “Nor did it try to conceal the role of Dominican authorities.”  “Under no reading of Exemption 7(D) can the FBI claim that releasing the toxicology reports would somehow ‘disclose the identity’ of a source that in fact was known all along.”  “Though the Dominican authorities apparently requested that the FBI not disclose the information Plaintiffs now seek, . . . this does not necessarily make them a ‘confidential source.’”  “It only reflects their wish that the information shared remain confidential.”  “But it is ‘confidential source[s]’ and not, broadly, ‘confidential information’ that the plain text of Exemption 7(D) protects.”  “But even if the Dominican authorities were a confidential source, Plaintiffs are not seeking disclosure of information that they ‘furnished.’”  “They are seeking toxicology reports ‘furnished’ by the FBI, which is clearly not a confidential source.”  “Acknowledging this difficulty, the FBI argues that the toxicology reports are exempt under 7(D) because they are based on information furnished in confidence by the Dominican authorities.”  “But the FBI does not explain – even at a high level of generality – what information that it obtained in confidence would risk being disclosed if it were to release the toxicology reports.”  “Indeed, the FBI admits that the relevant information ‘furnished’ by the Dominican authorities is publicly known.”  “As part of its productions here, the FBI identified the samples it received from the Dominican authorities, which it then used to run its toxicology tests.”  “The FBI claims these disclosures are ‘immaterial’ because the FBI aims to protect the ‘results’ of the tests that it ‘shared with the Dominican Republic on a confidential basis.’”  “But, again, Exemption 7(D) is not a two-way street:  it protects ‘information furnished by a confidential source,’ . . . not information furnished to a confidential source.”  “Because the FBI has not shown that disclosing the toxicology reports would reveal any non-public information furnished by Dominican authorities, Exemption 7(D) does not apply.”  “But withholding is warranted under Exemption 7(E).”

• Exemption 7(E):  The court relates that “[t]oxicology reports count among ‘techniques and procedures for law enforcement investigations or prosecutions’ – a conclusion Plaintiffs do not dispute.”  “So the only question remaining is whether the disclosure of the toxicology reports ‘could reasonably be expected to risk circumvention of the law.’”  “The Court finds that it does.”  “The FBI contends that releasing the toxicology reports would expose its lab’s limitations.”  “The extent of the FBI Lab’s testing capabilities is not publicly known.”  “And if it became public that the FBI could not test for certain chemicals during toxicology analysis, criminals could use that information to circumvent the law.”  “More, disclosing the toxicology reports would reveal how the FBI aids criminal investigations by foreign governments.”  “According to the FBI’s declarant, the results would show ‘exactly what information was requested from the lab, and what response was returned as a result of those requests.’”  “This would provide criminals and criminal organizations insight into the FBI’s ‘capabilities and vulnerabilities as they relate to coordination and information sharing with foreign partners.’”  “‘Understanding how the FBI does or does not obtain information from foreign partners . . . would enable criminals to predict FBI investigative tactics and develop countermeasures to avoid detection.’”
  
  “Plaintiffs counter that the FBI laboratory’s testing capabilities are already publicly known.”  “Not exactly.”  “While the public knows the FBI conducts toxicological testing, ‘the capabilities of the FBI lab in performing these tests, and the specific substances the FBI can test for, is not publicly known.’”  “And public knowledge that the FBI generally performs toxicological testing does not pose the same risk of circumvention as the release of detailed results, which might indicate which specific substances were screened and whether they were detected.” 
  
  “Plaintiffs also claim that the FBI has not adequately explained how disclosing the test results would reveal law enforcement techniques or risk circumvention of the law.”  “But the D.C. Circuit has rejected the notion that agencies must prove how the techniques will be disclosed or the law circumvented.”  “‘Rather than requiring a highly specific burden of showing how the law will be circumvented,’ the FBI need only ‘demonstrate logically how the release of the requested information might create a risk of circumvention of the law.’”  “At bottom, the FBI must show that disclosure of the exempted information would foreseeably harm ‘an interest protected by an exemption.’”  “To invoke Exemption 7(E), the FBI was ‘already require[d] . . . [to] show a risk of foreseeable harm.’”  “After all, ‘[t]he text of 7(E) allows withholding only when the withheld material “could reasonably be expected to risk” circumvention of the law.’”  “And here, the FBI’s declarant has explained that disclosure of the toxicology reports would ‘reveal limitations of the FBI Lab’s testing abilities’ in manner that ‘criminals could utilize to circumvent the law.’”  “This counts as a ‘focused and concrete’ explanation of ‘the basis and likelihood’ of the potential harm from disclosure.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonable Segregable” Showing:  The court holds that “[t]he FBI has satisfied this requirement, and Plaintiffs do not argue otherwise.”  “According to the FBI’s declarant, the agency conducted a ‘page-by-page, line-by-line segregability review.’”  “And it determined that, of the 796 pages remaining in dispute, four pages could be released in full and 83 pages released in part, with non-segregable information redacted.”  “The remaining 709 pages required withholding in their entirety because the information was either covered entirely by a FOIA exemption or was so inextricably intertwined with exempt material that no information could reasonably be segregated for release.”