Huddleston v. FBI, No. 20-00447, 2023 WL 8235243 (E.D. Tex. Nov. 28, 2023) (Mazzant, J.)
Huddleston v. FBI, No. 20-00447, 2023 WL 8235243 (E.D. Tex. Nov. 28, 2023) (Mazzant, J.)
Re: Request for records concerning deceased 27-year-old Democratic National Committee employee
Disposition: Denying defendant’s motion for clarification, or in the alternative, reconsideration; granting in part and denying in part plaintiff’s motion for clarification
- Litigation Considerations, Waiver of Exemptions in Litigation: The court relates that “[plaintiff] argues the FBI waived its arguments that FOIA Exemptions 7(D) and 7(E) apply to [a] personal laptop because the FBI failed to raise these issues in its motion for summary judgment . . . .” “In response, the FBI claims that it ‘clearly asserted and explained’ the exemptions in its summary judgment briefing, the Vaughn index, and the declarations.” The court finds that “[a] motion for reconsideration may not be used to introduce new arguments.” However, “[t]he FBI raised arguments regarding both exemptions in its summary judgment briefing, its Vaughn Index, and the 4th Seidel Declaration.” “In its Vaughn Index, the FBI indicated that Exemptions 7(D) and 7(E) apply to the personal laptop.” “Although greater explanation would have been helpful, specifically more detailed explanations of why Exemptions 7(D) and 7(E) apply to the personal laptop, the FBI has not waived its arguments regarding whether the exemptions apply to the personal laptop.”
- Exemption 7(D): “The Court is not persuaded that an implied assurance of confidentiality exists regarding the compact disk containing images of the personal laptop.” “Accordingly, the Court finds that the FBI did not properly withhold the files on the images of the personal laptop under Exemption 7(D).” The court relates that “[t]he FBI claims that Exemption 7(D) applies to the compact disk containing images of the personal laptop because local law enforcement provided the compact disk to the FBI under an implied assurance of confidentiality . . . .” “Specifically, the FBI argues that an implied assurance of confidentiality exists because ‘1) the information and assistance provided would disclose their agency’s law enforcement techniques, or details about law enforcement techniques, that are not publicly known; and 2) the information provided in some instances concerns the law enforcement agency's own confidential sources’ . . . .” “Further, the FBI claims that disclosure of the information could: ‘1) jeopardize these agencies’ investigative techniques and procedures as disclosure would allow criminals to predict and circumvent use of these techniques and procedures; 2) discredit these state and local law enforcement authorities with current and future confidential sources, and greatly hinder their ability to recruit their own valuable sources; and 3) subject the agencies’ personnel to violent reprisal.’” The court finds that “[t]wo of the FBI’s bases for finding that an implied assurance of confidentiality exists relate to the source agency’s investigative techniques and procedures . . . .” “These bases mirror Exemption 7(E), which protects information that ‘would disclose techniques and procedures for law enforcement investigations or prosecutions . . . if such disclosure could reasonably be expected to risk circumvention of the law.’” “If an agency attempts to demonstrate an implied assurance of confidentiality under Exemption 7(D) based on a need to protect another agency’s investigative techniques and procedures, then the agency’s explanation must meet the requirements of Exemption 7(E).” “The FBI’s bases based on the source agency’s investigative techniques and procedures fail to meet the requirements of Exemption 7(E).” “The FBI’s explanations only reveal that the source agency’s investigative techniques and procedures are not publicly known, and their disclosure would ‘allow criminals to predict and circumvent [the] use of these techniques and procedures’ . . . .” “These bases are conclusory and do not provide at least some explanation of what procedures are involved or how they would be disclosed . . . .” “Two of the FBI’s bases for finding that an implied assurance of confidentiality exists deal with the source agency’s confidential sources and the source agency’s ability to recruit confidential sources in the future . . . .” “These bases suggest that the FBI should be able to treat its source as confidential because its source’s source was confidential . . . .” “However, the FBI provides no explanation for why the ultimate source is confidential. . . .” “Ultimately, confidentiality must arise as an inference based on the underlying circumstances.” “An agency may not justify its assertion of Exemption 7(D) by claiming that its source’s source was confidential without further explanation.” “To show an implied assurance of confidentiality, the FBI must demonstrate an inference of confidentiality based on narrowly defined circumstances.” “However, narrowly defined circumstances cannot consist solely of describing an agency’s source as having a confidential source.” “Otherwise, an agency could effectively bypass the requirements . . . by simply labeling its ultimate source as ‘confidential.’” “Therefore, the FBI’s two bases for asserting Exemption 7(D) based on the source agency’s confidential sources are insufficient.” “The FBI’s final basis for asserting Exemption 7(D) is that its source agency’s personnel may face ‘violent reprisal’ . . . .” “However, the FBI provides no explanation as to how the disclosure of the compact disk containing images of the personal laptop could subject its source agency’s personnel to ‘violent reprisal’ . . . .”
- Exemption 7(E): The court relates that “[t]he FBI justifies its withholding of records from the personal laptop under Exemption 7(E) to protect the methods it uses to collect and analyze information it obtains for investigative purposes . . . .” “The FBI claims ‘[t]he release of this information would disclose the identity of methods used in the collection and analysis of information, including how and from where the FBI collects information and the methods employed to analyze it once collected’ . . . .” “In response, [plaintiff] argues that the FBI’s justification for using Exemption 7(E) is insufficient because it does not give any explanation of the procedures involved or how they would be disclosed.” The court finds that “[t]he FBI’s justification for withholding the files on the images of the personal laptop neither provides some explanation of what procedures are involved nor how they would be disclosed . . . .” “The FBI’s explanation . . . is vague and conveys minimal concrete information.” “The Court is unaware of what procedures would be at stake.” “The Court also is unaware of how the procedures would be disclosed.” “The Court is not persuaded that disclosure of this material could reasonably be expected to risk circumvention of the law.” “Accordingly, the Court finds that the FBI did not properly withhold the files on the images of the personal laptop under Exemption 7(E).” “Thus, the [plaintiff] is entitled to summary judgment on this issue.” “The Government shall produce a Vaughn index addressing the information it possesses on the compact disk containing images of [the] personal laptop that is responsive to Plaintiff’s FOIA requests.”
- Procedural Requirements, “Agency Records”: “The Court will require the FBI and DOJ to produce a Vaughn index relating to Seth Rich’s work laptop, the DVD, and the tape drive because these items are agency records.” “The FBI asserts that the items are not an agency record and thus not subject to FOIA.” “The FBI concedes the [created or obtained] prong of [the agency records] test, leaving only the [control] prong at issue.” “The Fifth Circuit has not yet adopted a test to evaluate whether an agency has control of materials for the purposes of the second element.” “The FBI urges the Court to analyze whether the agency had control over the items under the 4-factor [Burka v. [HHS]], 87 F.3d 508, 515 (D.C. Cir. 1996)] test . . . .” “However, [plaintiff] correctly notes that the D.C. Circuit has called the utility of the Burka test into doubt.” “Among the most insightful analyses into the flaws of the Burka test is the 9th Circuit’s opinion of Rojas v. [FAA], 941 F.3d 392 (9th Cir 2019).” “Rojas notes two problems with the Burka test.” “First, the first factor in the Burka test is in direct tension with the Supreme Court’s decision in [DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989)].” “The D.C. Circuit issued Burka before the Supreme Court issued Tax Analyst[s].” “This conflict exists because the ‘first factor [of Burka] is in tension with the Court’s conclusion that “the intent of the creator of a document” is not relevant to a determination of whether the document is an agency record.’” “Second, some of the Burka factors are less helpful when applied [to] electronic records today compared to over 25 years ago.” “In the words of the 9th Circuit, ‘[f]or instance, whether an email is “integrated” into the agency’s record system or files is less meaningful today because email and other electronic records may be automatically stored on an agency’s server, and not “filed” in a record system in any formal way.’” “An important consideration discussed in Tax Analyst is the distinction between an agency’s possession of records in connection with agency-related business and personal matters not related to the agency’s transaction of public business.” “The Supreme Court emphasized that agency records should not ‘include personal materials in an employee’s possession, even though the materials may be physically located at the agency.’” “Further, the Supreme Court noted that agency records include items and documents related to the agency’s ‘transaction of public business.’” “The 9th Circuit’s test in Roja[s] is that ‘a court may consider a range of evidence to determine whether specified records are in the agency’s possession in connection with agency-related business, or instead involve personal matters not related to the agency’s transaction of public business.’” “‘[E]vidence relating to the agency’s use of documents (including its system for preserving, retrieving, or disposing of the documents, and any reliance on the documents by agency employees) may be relevant to this inquiry.’” “‘Agency records are not limited to documents that are preserved according to agency directions.’” “Electronic records and ‘other documents that are unrelated to agency business are not agency records, even if they are stored on the agency’s server and used by an agency employee.’” “Because ‘no mens rea requirement [exists] for whether materials constitute agency records . . . agency records may include documents used by agency employees in connection with agency business, even if the employees were engaging in misconduct.’” “The Court will apply the Rojas test to determine whether the work laptop, the DVD, and the tape drive are agency records within the context o[f] FOIA.” “Given the numerous issues with the Burka test and its tension with Tax Analyst[s], the Court will not apply the Burka test.” “The Rojas test accounts for these issues and considers the distinction between an agency’s possession of records in connection with agency-related business and personal matters not related to the agency’s transaction of public business.” “Applying the Rojas test, the work laptop, the DVD, and the tape drive are agency records and subject to the FBI’s control as required under [the] second prong of the test for whether an item is an agency record.” “Undoubtedly, the FBI is in possession of the items as it stores them in an evidence control room . . . .” “The FBI emphasizes that the items are all evidentiary items, belonging to non-governmental, third parties . . . .” “Although these items are all considered evidentiary property ‘managed under a different set of rules and regulations than actual agency records,’ this circumstance does not demonstrate that the items are kept for reasons unrelated to the FBI’s transaction of public business . . . .” “Next, the FBI notes that it does not have the right to use and dispose of the items as it sees fit because they are governed by the Digital Evidence Policy Guide . . . .” “Therefore, the FBI must ultimately return these items to their ‘rightful owners when all criminal proceedings have terminated’ . . . .” “These claims suggest that although the FBI may not have absolute control of items, it possesses the ability to use the items within the bounds of the Digital Evidence Policy Guide for purposes related to the FBI’s transaction of public business . . . .” “The FBI provides two additional facts under its analysis of whether the items are agency records for the purposes of FOIA.” “First, the FBI claims that it found ‘no indication that the FBI relied on content of the work laptop, DVD, or tape drive’ . . . .” “This fact supports a finding that the items are not agency records.” “Finally, the FBI found that the items were not ‘incorporated into its records systems or files’ . . . .” “As Rojas diminished the Burka test’s focus on integration of the records, this fact has a neutral impact on whether the items are agency records.” “Overall, the FBI has not met its burden to demonstrate that the work laptop, the DVD, and the tape drive are not agency records under the Rojas test.” “Therefore, the [plaintiff] is entitled to summary judgment on this issue.” “The Court orders the FBI to produce a Vaughn index addressing the information it possesses on [the] work laptop, the DVD, and the tape drive that is responsive to Plaintiff’s FOIA requests.” “The Vaughn index must address the metadata contained within [the] work laptop.”
- Exemption 7(A): “[T]he Court finds that the FBI properly withheld the newly found documents under Exemption 7(A).” “The Court will not require the FBI and DOJ to produce the letter from a third party that accompanied the work laptop, two chain of custody forms, and the three-page report detailing actions by a third party outside entity to image the work laptop.” “The FBI argues that the release of any information concerning this investigation, including within the newly found documents, would be premature because the defendants (the indicted Russian nationals) are fugitives and various harms would result . . . .” “The FBI claims that ‘these individuals would acquire the unique advantage of knowing certain details . . . which could be used to . . . escape prosecution and thwart current investigative efforts by altering or counteracting evidence, changing behavior, intimidating or physically harming witnesses or law enforcement officials, and/or flight’ . . . .” “The FBI further claims that this information would ‘allow third parties who are not directly related to this matter to interfere with investigative efforts . . . through harassment, intimidation, and creation of false evidence by dispensing extraneous facts discussed in the investigation’ . . . .” “The FBI has provided a sufficient explanation to withhold the documents under FOIA Exemption 7(A).” “[T]he FBI has indicated that disclosure of the newly found documents would reveal information related to the fugitives that would aid said fugitives . . . .” “Further, the FBI has sufficiently described the enforcement proceeding at issue and how disclosure of the newly found documents could reasonably be expected to interfere with enforcement proceedings.” Additionally, “[t]he Court does not find the FBI’s arguments to be boilerplate and conclusory.” “Contrary to [plaintiff’s] arguments, a law enforcement agency does not necessarily have to rely on information for its disclosure to reasonably interfere with an enforcement proceeding.” “No element of FOIA Exemption 7(A) requires a law enforcement agency to rely on the information at issue.” “However, the FBI has described in sufficient detail how the public disclosure of the newly found documents could reasonably be expected to interfere with said enforcement proceedings regardless of its reliance on the newly found documents.”