Huddleston v. FBI, No. 20-00447, 2022 WL 4593084 (E.D. Tex. Sept. 29, 2022) (Mazzant, J.)

Huddleston v. FBI, No. 20-00447, 2022 WL 4593084 (E.D. Tex. Sept. 29, 2022) (Mazzant, J.)

Re:  Request for records concerning deceased 27-year-old Democratic National Committee employee

Disposition:  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

• Litigation Considerations, Vaughn Index/Declaration:  The court holds that “[plaintiff] has not sufficiently persuaded the Court that there is tangible evidence of bad faith sufficient to overcome the presumption of legitimacy afforded to the Government’s declarations.”
   
• Litigation Considerations, Adequacy of Search:  The court relates that “[o]ne of the main reasons [plaintiff] argues the FBI’s search was inadequate is based on the inconsistent results of responsive records located by the FBI in response to [a different, similar] request for information on Seth Rich compared to [plaintiff’s] request for information on [the subject].”  “[Plaintiff] first argues that the FBI’s indexing systems ‘are worthless’ because no files were located through the FBI’s standard index search in responding to either his or [the other] request.”  The court finds that “[plaintiff] is correct that the standard main entry and reference entry searches of the FBI’s [Central Records System (“CRS”)] . . . conducted in this case and [the other request] failed to locate any responsive records.”  “In particular, the standard searches failed to locate the 20,000 pages of potentially relevant material, including the two-page e-mail chain that states ‘Seth Rich’ in both the subject line and the body of the e-mail.”  “However, as a general rule, an agency’s failure to locate a few pages or a specific document is not alone sufficient to find the agency’s search was inadequate.”  “But the FBI did not miss ‘a few pages’ here.”  “The FBI missed 20,000 pages.”  “Such a high rate of error in populating responsive documents is alarming and brings into question whether the FBI’s standard CRS index search is truly ‘the most reasonable means . . . to locate records potentially responsive to FOI[A] requests’ as the FBI wants this Court to believe.”  “Even so, the fact that an agency failed to locate a large volume of records does not, by itself, compel a finding that the agency’s search was inadequate.”  “That is, unless the claimant can demonstrate that the agency failed to follow up on a clear lead identifying a particular type of record or location where responsive documents may be located.”  “[T]he FBI’s apparent failure to follow up on a lead in [the other] case, which it now recognizes was indicative of responsive documents related to [the request subject], does not result in the FBI’s search being inadequate in the present case.”  “In contrast to [the other] case, the FBI here went beyond its standard CRS index search.”  “In responding to [plaintiff’s] requests, based on [the Record/Information Dissemination Section (“RIDS”)] review of the documents produced in [another case], RIDS conducted a search of [United States Office of Special Counsel (“SCO”)] files maintained in the FBI’s CRS.”  “Further, based on a lead contained in documents referred to the FBI by the OIP, the FBI conducted a search of non-SCO related files within the San Francisco Field Office.”  “Additionally, the FBI forwarded [plaintiff’s FOIA requests to the FBI Headquarters, Office of Public Affairs, and the [Washington Field Office (“WFO”)] and instructed these offices to search for any potentially responsive records.”  “The FBI submitted [its] declaration, which sufficiently details these searches conducted by the FBI, the parameters of those searches, and the results from each search.”  “In the absence of contrary evidence, [defendant’s] declaration is sufficient to demonstrate the FBI conducted an adequate search in compliance with FOIA.”  “Despite the searches of these various offices, [plaintiff] contends that the FBI’s search was inadequate because it did not search WFO e-mail accounts and text messages.”  “The WFO is the FBI local field office for Washington, D.C.”  “Thus, based on its location, the WFO presumably would be the local field office that would have investigated Seth Rich’s death were the FBI to open an investigation.”  “However, because local law enforcement did not accept the WFO’s offer to assist with the investigation, [defendant] maintains that neither the WFO, nor the FBI, have ever opened an investigation into Seth Rich's death.”  “Accordingly, as [defendant] indicates, the WFO would not be reasonably likely to possess any investigatory records related to Seth Rich.”  “[Plaintiff] argues, however, that the two-page e-mail chain, which originated within the WFO, indicates that the WFO may possess responsive records.”  “However, as the FBI points out, the contents of the e-mail confirm that the WFO did not open an investigation into Seth Rich’s death.”  “Lastly, along the same lines, [plaintiff] argues that the FBI’s search was inadequate because the FBI did not search CART or other cyber units, and it did not search private e-mail accounts, text messages, and private storage drives of certain FBI employees.”  “The FBI responds that all FBI employees are required to store agency records on CRS or other FBI databases . . . .”  “Thus, to the extent any responsive records existed from these sources, the FBI contends that the records would be indexed in CRS.”  “Specifically in regards to private communication devices, the FBI further explains that these are not the types of sources that would typically be expected to contain agency records, and [plaintiff] has not articulated any facts to suggest otherwise.”  “[T]he FBI has sufficiently explained why these additional sources were not searched in this case.”  “Moreover, [plaintiff] has made no showing that, by the close of the FBI’s search, clear leads had emerged suggesting a need to conduct a further search of these sources.”
  
  “To the extent [plaintiff] is challenging the adequacy of the OIP’s searches, the Court is not persuaded by [plaintiff’s] arguments.”  “[OIP] exhaustively describes the role of the OIP in responding to [plaintiff’s] FOIA requests.”  “[Defendant] explains the OIP’s databases, search methods, search process, and search parameters, both generally and as-applied to [plaintiff’s] requests, and discusses the results of those searches . . . .”  “Other than the OIP’s search of text messages, [plaintiff] does not challenge any of this information.”  “Thus, [defendant’s] declaration is entitled to a presumption of legitimacy, and [plaintiff] has asserted no basis to overcome this presumption.”  “Regarding OIP’s search of text messages, [defendant] states that the OIP ‘has no indication that any text messages responsive to [plaintiff’s] request exist that would not have been captured within OIP’s searches, and OIP identified no leads that would suggest that any such text messages exist.”  “OIP correctly states that the question is not whether OIP ‘should have addressed private communications or storage in their declarations, but rather, given the presumption of regularity that agency employees adhere to agency policy, whether [plaintiff] has provided any evidence that that presumption should be overcome’ . . . .”  “[T]he Court agrees with the OIP.”
   
• Exemption 1:  The court holds that “the FBI is entitled to summary judgment on this issue.”  The court relates that “[p]ursuant to this exemption, the FBI withheld or redacted, among other information, details of intelligence activities, sources, and methods related to national security.”  “[Defendant] cites to Executive Order 13526 (“E.O. 13526”).”  “All of the . . . requirements are satisfied in this case.”  “[Defendant] states that he holds original classification and declassification authority pursuant to §§ 1.3 and 3.1 of E.O. 13526 . . . .”  “Any responsive documents in this case were produced by the FBI and the OIP, which are agencies of the United States Government.”  “Further, [defendant’s declarant], in his capacity as Section Chief of RIDS, determined that the requested information concerned intelligence activities, intelligence sources or methods, and foreign relations or foreign activities of the United States . . . .”  “Accordingly, the FBI has satisfied E.O. 13526’s requirements for the information to be subject to classification.”  “Thus, the intelligence activities, sources, and methods withheld by the FBI are properly classified under E.O. 13526 and are exempt from disclosure if the FBI has established that public disclosure of the information will harm national security.”  “[Defendant] states that the information was withheld ‘to protect intelligence methods utilized by the FBI for gathering intelligence data’ . . . .”  “[Defendant] explains that releasing this information could cause ‘serious or exceptionally grave damage’ to the national security of the United States for the following reasons:  ‘(1) disclosure would allow hostile entities to discover the current intelligence gathering methods used by the FBI; (2) disclosure would reveal current specific targets of the FBI’s national security investigations; and (3) disclosure would reveal the determination of the criteria used and priorities assigned to current intelligence and counterintelligence investigations’ . . . .”  “[Plaintiff’s] speculation about the FBI’s motive for withholding information under Exemption 1 is not sufficient to demonstrate that the information was improperly withheld.”  “[R]egardless of [plaintiff’s] opinion on national security, the Court will not second-guess issues the Government has deemed to have importance to national security concerns.”
   
• Exemption 3:  The court relates that “[t]he FBI asserted Exemption 3 pursuant to the National Security Act of 1947 as amended by the Intelligence Reform and Terrorism Prevention Act of 2003, 50 U.S.C. § 3024(i)(1).”  “The National Security Act makes the Director of National Intelligence responsible for ‘protect[ing] from unauthorized disclosure intelligence sources and methods.’”  “[Plaintiff] does not raise any challenges specific to Exemption 3.”  “Rather, he ‘incorporates his previous discussion of Exemption 1’ on national security . . . .”  “[Defendant] explains that the FBI withheld certain intelligence sources and methods under Exemption 3 because this information, if revealed, would compromise the agency’s intelligence-gathering efforts . . . .”  “Therefore, [defendant] states that the FBI is prohibited from disclosing the information under the National Security Act.”  “[Defendant] further explains that Exemption 3 was also raised to protect Federal Grand Jury Information pursuant to Federal Rule of Criminal Procedure (6)(e), and pen register information under the Pen Register Act, 18 U.S.C. § 3123(d).”  “[Plaintiff] concedes that grand jury information and pen register information are properly exempt from disclosure under Exemption 3.”  “Given the broad authority intelligence agencies have to withhold information on national-security grounds or on the basis that disclosure of the information would threaten intelligence-gathering efforts, the Court finds the FBI has sufficiently shown that it properly withheld information under Exemption 3.”
   
• Exemption 4:  The court relates that, “[p]ursuant to Exemption 4, the FBI withheld a ten-page report (the ‘Report’).”  “To determine if the Report qualified for protection under Exemption 4, the FBI contacted the private commercial institution the Report was obtained from.”  “The institution responded that the information located by the FBI was treated as private by the institution, and it was shared with an expectation the FBI would not disclose the information publicly . . . .”  “Specifically, the institution stated that the information in the Report was proprietary in nature and any public release would be detrimental to their commercial interests . . . .”  “The institution informed the FBI it would not have supplied the Report originally without a belief the FBI would hold the information in confidence . . . .”  “[T]he Court conducted in camera review of the Report.”  “After conducting in camera review, the Court is satisfied that the FBI properly withheld the Report under Exemption 4.”  “The Court also agrees that further information about the Report cannot be disclosed under FOIA without revealing the confidential information contained therein.”
   
• Exemption 5, Deliberative Process Privilege & Attorney Work-Product Privilege:  The court relates that, “[p]ursuant to Exemption 5, the FBI withheld certain information that it determined constituted privileged, deliberative material, and privileged attorney work-product material.”  “Specifically, the FBI withheld the following:  (1) portions of e-mail communications between FBI employees containing preliminary opinions on agency decisions; (2) the entirety of intra-agency deliberate draft handwritten interview notes of SCO employees when investigating Russia’s alleged interference in the 2016 election and other related investigations; (3) the entirety of a draft interview prompt and draft outline used by FBI employees during the interviews of third party subjects of investigative interest; and (4) the entirety of eighteen pages of draft prosecution memoranda prepared by or at the direction of FBI attorneys and compiled for purposes of determining whether to prosecute particular individuals.”  “[T]he Court was not persuaded that the crime-fraud exception is applicable to compel production of documents withheld under Exemption 5.”  “[Plaintiff] has not raised any additional arguments on this issue . . . .”  “Accordingly, the Court finds the FBI properly withheld the above-described documents under Exemption 5 and is entitled to summary judgment on this issue.”
   
• Exemption 6 & Exemption 7(C):  First, the court relates that “[plaintiff’s] First Request sought, in part, information on [the deceased subject’s brother] and [a federal prosecutor].”  “In responding to this request, the FBI stated that it would neither confirm nor deny the existence of such records because ‘[t]he mere acknowledgement of the existence of FBI records on [these] third[-]party individuals could reasonably be expected to constitute an unwarranted invasion of personal privacy’ . . . .”  “The Court finds that [these two individuals] have personal privacy interests in preventing the public disclosure of their information recognizable under Exemptions 6 and 7(C).”  “[C]ourts have recognized that ‘persons who are not the subjects of the investigation may nonetheless have their privacy invaded by having their identities and information about them revealed in connection with the investigation.”  “Moreover, even if [these two individuals] publicly commented about their roles in the Seth Rich investigation, this does not divest them of their privacy interests.”  “Because the Court finds that [these two individuals] have recognizable privacy interests, the Court must next determine whether the public interest in the disclosure of any such records outweighs their privacy concerns.”  “[Plaintiff] did not address the public interests under this analysis or allege that a public interest outweighed [these two individuals’] privacy interests.”  “Thus, as the party with the burden to establish a countervailing public interest, the Court finds [plaintiff] has not satisfied this burden.”  “Further, given the amount of weight provided to the protection of third-party information contained in law enforcement records, . . . the Court finds that any potentially relevant public interest does not outweigh the privacy interests of [the two individuals] under the circumstances.”  “Accordingly, the Court finds the FBI properly withheld this information under Exemptions 6 and 7(C).”
  
  Second, the court relates that “[u]nder Exemptions 6 and 7(C), the FBI withheld the contents of Seth Rich’s personal laptop in their entirety.”  “The FBI argues this withholding was proper because Seth Rich’s survivors have a privacy interest in preventing the public release of this information that outweighs the public’s interest in disclosure.”  “The Court is not persuaded by the FBI’s argument that Seth Rich’s survivors have a privacy interest in withholding the entirety of the information contained on Seth Rich’s laptop.”  “Pointedly, the FBI cites to no case law for the proposition that survivors of the deceased have a privacy interest in information related to the deceased’s favorite music or relationship history.”  “Further, preventing the public from knowing Seth Rich’s favorite band is in no way comparable to releasing his autopsy report or photographs from when he was shot.”  “With autopsy reports and death-scene photographs, the survivors have a recognized privacy interest because publicly revealing often-gruesome photos of their loved one and intimate details about their loved one’s death may cause the survivors ‘additional pain, disruption to peace of mind, additional anguish, or annoyance or harassment.’”  “The FBI has not demonstrated that this same principle applies here to provide Seth Rich’s survivors with a privacy interest over the contents of his laptop.”  “The FBI has not satisfied its burden of showing more than a de minimis privacy interest that would justify withholding information from Seth Rich’s laptop under Exemptions 6 and 7(C).”  “As a result, the Court does not reach the balancing test analysis.”  “Accordingly, the Court finds the FBI improperly withheld this information under FOIA, and the Court is thus authorized to order its production.”
   
• Exemption 7(D):  The court relates that “[u]nder this exemption, the FBI . . . withheld information provided by foreign government agency authorities under an implied assurance of confidentiality . . . .”  “The FBI explains that, although the foreign agency referenced in the records at issue here did not request its relationship with the FBI be classified, it did request the relationship not be disclosed . . . .”  “The FBI contends that the ‘release of official United States Government documents revealing the existence of such confidential relationship with a long-term foreign government partner . . . reasonably could be expected to strain relations between the United States and foreign governments and lead to negative diplomatic, political, or economic repercussions’ . . . .”  “Further, the FBI states that ‘a breach of this relationship can be expected to have a chilling effect on the free flow of vital law enforcement/national security information to the FBI, which would impede the FBI's effectiveness in countering/solving crimes and protecting national security’ . . . .”  The court finds that “the FBI has met its burden here.”  “The FBI . . . has alleged that the foreign government at issue provided information under an assurance of confidentiality and describes how the public disclosure of information would hinder its ability to properly seek cooperation from other sources and gather confidential information.”
   
• Exemption 7(E):  The court relates that “while [plaintiff] does not directly challenge the FBI’s withholding of information under Exemption 7(E), he does argue that the FBI improperly withheld whether or not it used ‘code names’ assigned to specific individuals in searching for records responsive to his requests . . . .”  “The FBI contends that, in addition to infringing on the privacy interests of third parties, ‘merely acknowledging the existence or non-existence of records responsive’ to this request ‘would trigger one or more harms under FOIA Exemption (b)(7)(E)’ . . . .”  “[T]he FBI contends that ‘[h]ow, to whom, and under what circumstances the FBI assigns code-names to individuals or operations [ ] is itself a law enforcement technique or procedure that the FBI protects pursuant to Exemption (b)(7)(E)’ . . . .”  “The FBI explains that ‘[c]ode names are unique and assigned to solely one particular subject or initiative of national security interest,’ and ‘are used in lieu of the [subject’s] actual name, description, and information’ . . . .”  “The Court is persuaded that disclosure of this material, to the extent it exists, could reasonably be expected to risk circumvention of the law.”  “Accordingly, the Court finds that the FBI properly withheld any information that it may possess on code names under Exemption 7(E).”