Jett v. FBI, No. 14-00276, 2015 WL 5921898 (D.D.C. Sept. 30, 2015) (Mehta, J.)

Jett v. FBI, No. 14-00276, 2015 WL 5921898 (D.D.C. Sept. 30, 2015) (Mehta, J.)

Re: Request for records concerning investigation of plaintiff's election related allegations

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Exemption 7(C):  "[T]he court finds that revealing the names and other identifying information of these individuals would 'occasion an invasion of' their privacy 'disproportionate to, and therefore unwarranted by, such insight as the public would gain into what the Government is up to.'"  The court relates that "[t]he FBI here invoked Exemption 7(C) to withhold the names and identifying information of, broadly speaking, two categories of individuals: third parties and law enforcement personnel."  The court finds that "absent 'compelling evidence' of 'illegal activity,' those public interests do not outweigh the strong individual privacy interests enshrined in Exemption 7(C)."  Additionally, the court states that "[t]he FBI did, in one instance here, invoke Exemption 7(C) to justify withholding three pages in their entirety, all of which pertain to the high-ranking Member of the House of Representative’s travel itinerary to Florida."  "The court has reviewed those three pages in camera and agrees with the FBI that the Member’s privacy interests outweigh the 'citizens' right to be informed about what their government is up to.'"  "Thus, the FBI’s withholding of those pages was proper."
   
• Exemption 7(E):  The court holds that "[b]ecause the disclosure of [this] information poses a risk to future law enforcement activities, it was properly withheld under Exemption 7(E)."  The court states that, "[h]ere, the FBI asserted Exemption 7(E) to protect two types of information."  "First, the FBI claims that Exemption 7(E) applies to information concerning 'the nature and timing of the FBI investigation pursued by the FBI in the subject records'; specifically, 'the type of investigation it pursued and how it transitioned through the specific stages of its investigation.'"  "Second, the FBI asserts that Exemption 7(E) was used appropriately to protect 'sensitive investigative strategies employed in order to investigate plaintiff’s allegations of criminal misconduct' because '[r]evealing these strategies would reveal how and when the FBI chooses to utilize certain investigative techniques in response to particular investigative circumstances.'"  "The court agrees with Plaintiff that, on its own, [defendant's] Declaration fails to meet even the relatively low bar required to justify withholding under Exemption 7(E)."  "[Defendant's] Declaration lacks any case-specific, meaningful explanation as to how any particular technique, procedure or guideline at issue in this case would make it easier for individuals to evade the law."  However, "[n]otwithstanding the inadequacy of [defendant's] Declaration, the court nevertheless finds, based on its own in camera review of the material at issue, that the FBI properly invoked Exemption 7(E)."  "With the benefit of an in camera review, the court can conceive of at least two reasons why disclosure of the redacted information 'could reasonably be expected to risk circumvention of the law.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "Having conducted an in camera inspection of the withheld portions, the court finds that the FBI properly disclosed the reasonably segregable, nonexempt portions of the responsive records."
   
• Procedural Requirements, Responding to FOIA Requests:  "[T]he court grants Defendant’s motion and denies Plaintiff s motion with respect to [plaintiff's] claim regarding the duplicate records."  The court finds that "though 'records may not be withheld simply because a similar, draft, or annotated version was produced by another part of the agency, it would be illogical and wasteful to require an agency to produce multiple copies of the exact same document.'"
   
• Procedural Requirements, Searching for Responsive Records:  The court holds that defendant "has failed to carry its burden to 'show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'"  First, the court finds that "[t]he FBI . . . will be required to search for files in CRS using the names of the persons identified in [plaintiff's] FOIA request."  The court explains that "[plaintiff's] failure to produce a Privacy Act waiver did not, in this case, justify the FBI’s refusal to search for documents by running the names of other pertinent players through the CRS database."  "Whether such searches would return producible documents is a separate question."  The court finds that "the FBI here could not categorically decline to run searches using the names of those people identified by [plaintiff] as being involved in the public corruption investigation."  "Although those persons have compelling personal privacy interests, the public interest here is 'weighty.'"  Second, the court rejects defendant's argument and finds that "[plaintiff's] request cannot reasonably be read to have asked the FBI to search only the [Central Records System] database."  The court finds that "the need to search the [Electronic Surveillance Indices] system," "a record-keeping system separate from CRS that the FBI uses to hold records pertaining to the agency’s use of electronic or telephonic recordings that cannot be searched via the CRS database," "was plain on the face of [plaintiff's] FOIA request."  "[Plaintiff] specifically asked for 'copies of telephonic tape recordings made from [his] personal telephone at the request of the FBI.'"  "Thus, from the outset, ELSUR was an obvious source of responsive information that the FBI was required to search."