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Holt v. DOJ, No. 22-00605, 2024 WL 4277835 (E.D. Ark. Sept. 24, 2024) (Baker, C.J.)

Date

Holt v. DOJ, No. 22-00605, 2024 WL 4277835 (E.D. Ark. Sept. 24, 2024) (Baker, C.J.)

Re: Requests for records that FBI supplied the Security Threat and Terrorist Group (“STTG”) Coordinator at Arkansas Department of Correction

Disposition:  Granting defendant’s motion for summary judgment

  • Exemption 1:  The court holds that “[t]he FBI properly applied exemption 1.”  The court relates that “the FBI withheld classified information on two electronic communications concerning detailed intelligence activity.”  The court finds that “the FBI outlined in detail why Executive Order 13526 applies, how the requested information was classified, and the harm that disclosure of the information would pose to national security.”  “[Plaintiff] bases his argument on the wrongful application of this exemption to a specific document, an email, but in the absence of any offered evidence, [plaintiff] has not established that there is a genuine issue of material fact regarding how the FBI applied exemption 1 to the requested information.”
     
  • Exemption 3:  The court holds that “the FBI has properly invoked exemption 3.”  “The FBI asserts that, pursuant to exemption 3, it can withhold information under the National Security Act of 1947 (‘NSA’), as amended by the Intelligence Reform and Terrorism Prevention Act of 2004 (‘IRTPA’) . . . .”      “[Plaintiff] disputes the applicability of the Act claiming that the FBI does not provide any dates or time periods of the documents and that he ‘does not believe that any of the documents contain classified information or that they qualify under the National Security Act.’”  “[Plaintiff’s] argument fails because the Act does not require the agency to provide the time period of the documents.”  “The Act provides that the Director of National Intelligence (‘DNI’) ‘shall protect, and shall establish and enforce policies to protect, intelligence sources and methods from unauthorized disclosure.’”      “Moreover, the Act requires that the DNI establish and implement requirements for classification, access and dissemination, and preparation of intelligence products.”  “With this authority, the DNI promulgated the Intelligence Community Directive 700 that requires the intelligence community to protect ‘national intelligence and intelligence sources and methods and activities from unauthorized disclosure.’”  “The FBI is one of the agencies comprising the intelligence community, and thus, pursuant to the DNI’s directive, it must protect intelligence sources . . . .”  “The FBI claims that ‘intelligence sources and methods would be revealed if any of the withheld information is disclosed.’”  “Specifically, the FBI’s Vaughn index identifies the documents, the page number, and whether the document was released or withheld pursuant to exemption 3.”  “Moreover, the FBI’s index justifies withholding such records under exemption 3 for the ‘[p]rotection of [i]ntelligence [s]ources] and [m]ethods’ pursuant to 50 U.S.C. § 3024(i)(1).”
     
  • Exemption 5, Deliberative Process Privilege:  The court relates that “[t]he FBI claims that the records pertaining to a deliberative discussion between the FBI SA and an AUSA were pre-decisional because the discussion was about ‘legal strategies regarding Plaintiff’s violations, sentence, and parole’ and because the information does not reflect the FBI’s final decision . . . .”  “The FBI further withheld two sets of handwritten notes by an FBI SA under the deliberative process privilege . . . .”      “The FBI argues that the notes ‘include facts that are intertwined with the SA’s impressions, thoughts, and judgments.’”  “Moreover, it claims such notes are deliberative and pre-decisional because ‘they precede the final writeup formally memorializing an interview.’”      “[Plaintiff] does not offer an argument as to why the discussion between the SA and AUSA and the handwritten notes are not exempt from disclosure under the deliberative process privilege.”  “Because the record undisputably reflects that the SA and AUSA’s discussion about [plaintiff] and handwritten notes included the agency’s legal strategies regarding [plaintiff] and were not the agency’s final positions, a reasonable jury could conclude that the FBI properly invoked the deliberative process privilege.”
     
  • Exemption 5, Attorney-Client Privilege:  The court relates that “[t]he FBI claims that there was an attorney-client relationship between the DOJ AUSA and the FBI SA when they discussed [plaintiff’s] sentence and parole in confidence . . . .”      “[Plaintiff’s] argument that the attorney-client privilege does not apply because the FBI did not identify who the client is and has not maintained that the records were confidential is unavailing . . . .”  “In the absence of any evidence to the contrary, the record reflects that the FBI employee was the client and the AUSA the attorney; further, it reflects that the FBI SA and AUSA discussed the information at issue in confidence . . . .”  “Therefore, [the court finds that] the FBI properly withheld the requested documents under the attorney-client privilege.”
     
  • Exemption 6; Exemption 7, Threshold; Exemption 7(C):      First, the court relates that “[t]he FBI contends that the records requested were compiled, pursuant to the FBI’s investigatory authority, to document the FBI’s investigation of [plaintiff] for ‘possible bomb threats to military recruiting stations and a police station, and a plot to harm United States government officials.’”      “[E]xamining the record evidence with all reasonable inferences drawn in favor of [plaintiff], the Court concludes that the FBI has met its burden that the records in question were compiled for law enforcement purposes.”

    The court then finds that “[E]xemption 7(C) mandates the protection of citizens’ privacy against uncontrolled disclosure.”  “The information the FBI withheld under exemptions 6[] and 7(C) includes ‘personal information about FBI employees, third parties interviewed by [the] FBI, people of interest in the investigation, employees of other agencies involved in the investigation, victims, and local and state government professional staff.’”  “The FBI claims that [plaintiff] does not assert any public interest for the information, but rather, he requests it for personal reasons . . . .”  “Examining the record evidence with all reasonable inferences drawn in favor of [plaintiff], the Court agrees with the FBI that [plaintiff] does not advance a public interest in disclosure sufficient to satisfy that required by the exemption.”  “Therefore, [plaintiff] has not adequately asserted a public interest that outweighs the privacy interests of the individuals whose personal information is contained in the documents at issue sufficient to warrant disclosure.”
     
  • Exemption 7(D): The court relates that “[plaintiff] claims that the FBI wrongly applied exemption 7(D) ‘to the email at issue’ because the FBI’s ‘Vaughn index does not state with specificity this exemption regarding the e-mail.’”  “Here, the FBI provided a Vaughn index outlining the exemption justification categories, a description of FBI document types, a description of each document, the FOIA exemption claimed, if any, and whether or not the document was disclosed . . . .”  “Additionally, the FBI provided [an affidavit which] explained in detail the purported reasons the FBI exempted the records from disclosure under exemption 7(D) . . . .” “Examining the record evidence with all reasonable inferences drawn in favor of [plaintiff], the Court concludes that the FBI properly withheld documents under exemption 7(D).”
     
  • Exemption 7(E): The court relates that “[t]he FBI asserts that it withheld documents under exemption 7(E), . . . ‘to protect the integrity and effectiveness of [the] FBI’s investigative techniques so criminals cannot discover them and use them to circumvent investigation or avoid detection.’”  “The information withheld under this exemption includes ‘FBI file numbers, identities of squads and divisions, secure fax and telephone numbers, methods of information collection and analysis, investigative techniques and capabilities, non-public coordination with other government agencies, and criteria used to determine source suitability.’”  “Without any contrary record evidence cited by [plaintiff], examining the record evidence with all reasonable inferences drawn in favor of [plaintiff], the Court concludes that the FBI met its burden to demonstrate that disclosure of the documents claimed exempt under 7(E) would disclose FBI techniques and procedures, and thus, the FBI properly withheld documents under [E]xemption 7(E).”
     
  • Exemption 1; Exemption 3; Exemption 7(D); Exemption 7(F):  The court relates that “[t]he FBI gave [plaintiff] ‘its standard Glomar response concerning unacknowledged intelligence records, watch list records, witness security program records, and records for incarcerated individuals advising that it can neither confirm nor deny the existence of such records pursuant to FOIA Exemptions 1, 3, 7(D), and 7(F).’”  “[Plaintiff] claims that the FBI’s Glomar response is unlawful because ‘acknowledging the existence or non-existence of records would not logically or plausibly reveal the specific facts the Defendants list’ and that some of the documents in question are not confidential and have already been released by other agencies . . . .”  “[Plaintiff’s] argument fails because, ‘[i]n light of the substantial weight accorded agency assertions of potential harm’ that could result by disclosing records exempt under exemptions 1, 3, 7(D), and 7(F), the agency has put forth plausible and logical justifications, as discussed previously, for invoking such exemptions.”  “It follows, the agency’s Glomar response under those same exemptions is adequate.”
     
  • Litigation Considerations, In Camera Inspection:  Responding to plaintiff’s request, the court finds that, “[b]ecause the FBI’s Vaughn index and supporting declarations adequately describe its reasons for non-disclosure and because [plaintiff] does not provide any record evidence of the FBI acting in bad faith, in camera review is not warranted.”
Court Decision Topic(s)
District Court opinions
Exemption 1
Exemption 3
Exemption 5, Attorney-Client Privilege
Exemption 5, Deliberative Process Privilege
Exemption 6
Exemption 7(C)
Exemption 7(D)
Exemption 7(E)
Exemption 7(F)
Exemption 7, Threshold
Litigation Considerations, In Camera Inspection
Updated November 5, 2024