Jett v. FBI, No. 14-00276, 2017 WL 978969 (D.D.C. Mar. 13, 2017) (Mehta, J.)

Jett v. FBI, No. 14-00276, 2017 WL 978969 (D.D.C. Mar. 13, 2017) (Mehta, J.)

Re: Request for information regarding investigation of allegations that pre-election bribe offer was made to plaintiff

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

• Litigation Considerations, Adequacy of Search: First, the court finds that "[t]he court is satisfied with the FBI's explanation[,]" which "resolve[s] any perceived inconsistency between the FBI's statements that it ran searches using the third-party names [plaintiff] provided, . . . yet recovered no new documents after conducting those searches." "The materials produced to [plaintiff] . . . were not the product of a new search pursuant to the court's Order, but rather, late-delivered documents responsive to the original searches the FBI ran before the court entered any summary judgment order in this case." Second, "[t]he court [finds that it] is not satisfied, however, with the FBI's explanation regarding the protocol used to search the [Electronic Surveillance Indices ("ELSUR")] in this case." Specifically, the court finds that defendant's contention that "its most recent searches of the [Central Records System ("CRS")] for the third-party names [plaintiff] provided constitute an 'adequate search' within the meaning of FOIA because that single search – conducted through the ACS and Sentinel – was reasonably expected to locate responsive material in both the CRS and ELSUR indices[.]" "The notion that a search of the CRS via ACS and Sentinel will also locate any responsive records in the ELSUR indices is inconsistent with the position the FBI has taken in both this litigation and other FOIA lawsuits before this District Court." "[The] unanswered questions and the inconsistencies in the FBI's statements, not only within this case but also across different cases over the course of years, give rise to the kind of serious misgivings that may evidence agency bad faith and warrant discovery to resolve."
   
• Litigation Considerations, Discovery: The court holds that "[plaintiff] may conduct discovery for the limited purpose of determining whether the FBI has the capability of simultaneously searching for records in the CRS and ELSUR indices, such that it performed an adequate search in this case, or whether the FBI must conduct separate searches in each database to reach all responsive records." The court finds that "[plaintiff], the court, and the public have a profound interest in achieving clarity regarding the searchability of the ELSUR indices and resolving the conflicting representations that the FBI has made about the characteristics of that database."
   
• Exemptions 6 & 7(C): "[T]he court finds the FBI appropriately invoked Exemption 7(C) to redact and withhold the names and identifying information of third parties and law enforcement personnel in the materials released to [plaintiff.]" The court finds "that the 'strong privacy interests of those named in the FBI's files' outweigh any countervailing public interest in their disclosure."
   
• Exemption 7(E): The court finds that "the FBI's affidavits provide specific information sufficient to place the withheld materials squarely within the bounds of Exemption 7(E)." The court relates that defendant "states that the four-page document the FBI withheld pursuant to Exemption 7(E) contains a questionnaire that, though perhaps publicly known in a generic sense, becomes sensitive when filled out with content related to a specific investigation, as is the case here." "[T]he questionnaire lists 'other potential techniques, the specific purpose of the technique utilized, internal reviewing procedures, sensitive threshold requirements, factors weighed in granting or denying the application, and a detailed description of the specific actions to be performed with this technique.'" "[Defendant] states that disclosure of these materials would risk providing criminals 'with an inside look at the FBI's "playbook,"' as it could assist criminals in structuring an attack so as to avoid triggering certain FBI responses or detection of criminal activity." "Thus, the FBI presents, in presumed good faith, that the materials it has withheld would disclose sensitive FBI techniques that risk circumvention of the law, and [plaintiff] advances no argument or evidence to rebut that presumption."
   
• Litigation Considerations, "Reasonably Segregable" Requirements: The court holds that "the FBI has satisfied its obligation to show that it released all reasonably segregable, nonexempt information by outlining its review process in detail[.]" The court relates that defendant "explains that [it] reviewed the media disc and each of the 26 responsive pages for segregability purposes and made its redactions and withholdings pursuant to Exemptions 6, 7(C), and 7(E), as just discussed."