Johnston v. Wray, No. 20-00520, 2022 U.S. Dist. LEXIS 94346 (D. Ariz. May 24, 2022) (Rash, J.)

Johnston v. Wray, No. 20-00520, 2022 U.S. Dist. LEXIS 94346 (D. Ariz. May 24, 2022) (Rash, J.)

Re:  Request for certain records related to a July 25, 2017 attempted bank robbery for which plaintiff was convicted

Disposition:  Granting defendants' motion for summary judgment

• Litigation Considerations, Preliminary Injunctions:  "Plaintiff's claim for injunctive relief arises from the FBI's alleged failure to respond to Plaintiff's July 2020 FOIA request."  "On the current record, it is undisputed the FBI did respond, which moots the substance of this claim."  "In his Second Amended Complaint, Plaintiff baldly alleged none of the records he requested were classified or subject to the Privacy Act."  "Liberally construed, Plaintiff broadly states a claim for injunctive relief with respect to the FBI's withholding of responsive materials located in its search."  "The Court will therefore address whether Plaintiff is entitled to any injunctive relief as to FBI's claimed exemptions."
   
• Exemption 5:  "Defendant has met its burden of showing Exception 5 applies to the handwritten interview notes made by FBI agents during the investigative process."  "Defendant argues the 3 pages of handwritten notes from third-party interviews withheld by the FBI are subject to work product privilege because they are the informal notes of SAs prepared for law enforcement purposes that predate any final agency decisions, and these draft notes, which were later edited and distilled into documents that were disclosed to Plaintiff, 'reflect the give and take of deliberations' prior to development of the final product."  "These notes were written by Special Agents (SAs) during interviews with individuals who provided information to the FBI pertaining to the attempted bank robbery."  "Defendant further argues, because these notes reflect how particular SAs processed unrefined information, their disclosure would reveal information obtained and considered but not included in a final report and therefore have a chilling effect on the agents' abilities to engage in open discussions of investigative strategies."   
   
• Exemptions 6 and 7(C):  "Defendant has made an initial showing that withholding the names and personal identifying information of the above categories of individuals in the documents disclosed to Plaintiff was justified under Exemptions 6 and 7(C)."  "This includes information regarding third-party search and seizure and the radio chatter and dispatch calls of the Harwood Heights Police Department to the extent this information could reveal the identities and operations of third-party law enforcement personnel and members of the public."  "Defendant argues the FBI properly withheld the names and other identifying information of the SAs in the records responsive to Plaintiff's request because the identities of investigating officers in a particular investigation, if known, could trigger hostility toward those officers from those targeted by the investigation and could endanger the officers for years."  "Conversely, there is no public benefit to knowing the identities of the particular officers involved in an FBI investigation."  "Defendant argues these same considerations apply to the names and personal identifying information of local law enforcement personnel."  "Defendant similarly argues third parties only tangentially associated with an FBI investigation who are not, themselves, of investigative interest, have considerable privacy interests in not having their identities disclosed in connection with an FBI investigation, and, if disclosed, the public would gain little if any relevant understanding of the FBI's operations."  "Similarly, third-party informants have considerable privacy interests in not having their identities known, and fear of being identified as an informant is the biggest obstacle to the FBI obtaining critical information in its investigations; whereas, identifying these individuals is not necessary to shed light on the FBI's operations." 
   
• Exemption 7(E):  "The FBI's Vaughn Index indicates the agency withheld in full surveillance video from the Byline Bank on July 25, 2017 under Exemption 7(E)."  "Defendant argues all the information withheld under Exemption 7(E) pertained to security measures of specific business establishments, including what security measures were available at those locations and where those security measures were and possibly still are on the premises, the release of which would divulge information that might allow criminals to commit robberies or other criminal activities more effectively and to avoid arrest and prosecution."  "Defendant has made an initial showing the responsive video surveillance the FBI located from private businesses, including the Byline Bank, on July 25, 2017, was properly withheld under Exemption 7(E) because the disclosure of that information 'could reasonably be expected to risk circumvention of the law.'"