Kendrick v. FBI, No. 20-2900, 2022 WL 4534627 (D.D.C. Sept. 28, 2022) (McFadden, J.)
Date
Kendrick v. FBI, No. 20-2900, 2022 WL 4534627 (D.D.C. Sept. 28, 2022) (McFadden, J.)
Re: Request for records concerning plaintiff
Disposition: Granting defendants motion for summary judgment; denying plaintiff’s cross-motion for summary judgment
- Litigation Considerations, Adequacy of Search: “The Court will . . . grant summary judgment to the FBI as to the adequacy of its searches.” The court finds that “[t]he FBI has carried its burden.” “Its experienced declarant first explains the FBI’s various record-keeping systems.” “The declarant attests that the FBI ‘conducted a search reasonably calculated to locate records responsive to [Kendrick’s] request.’” The court also notes that the FBI explained its choice of search terms. Additionally, the court finds that “[plaintiff’s] speculation about potentially responsive records in an unconfirmed database . . . does not cast doubt on the FBI’s otherwise thorough searches.”
- Exemption 7, Threshold: The court relates that “[t]he FBI attests that some records [plaintiff] requested resulted from the ‘fulfillment of its law enforcement duties’ and were ‘compiled in the course of the FBI assisting with a federal joint investigation’ of [plaintiff] and others for conspiring to commit drug trafficking crimes, firearms offenses, and murders.” “[Plaintiff] does not say otherwise, so the Court considers only whether the information meets the conditions of Exemption 7’s subparts.”
- Exemption 6 & Exemption 7(C): The court first notes that “[t]hough the two exemptions are similar, 7(C) ‘provides broader privacy protections’ and ‘thus establishes a lower bar for withholding material.’” “So when agencies rely on both Exemptions 6 and 7(C) for the same material, the Court need not ‘consider Exemption 6 separately[.]’” The court relates that “[t]he FBI redacted the names and other identifying information of third-party individuals – including special agents, professional staff, non-FBI law enforcement personnel, persons of investigative interest, informants, and victims.” The court finds that “the FBI plausibly explained the risks to privacy if it were to release such information.” “[Plaintiff] suggests no [public] interest.” “He says that he requested the records to help him fight his criminal convictions.” “That is indeed a weighty personal interest.” “But such a ‘personal stake in the release of the [redacted] information is irrelevant to the balancing’ required by 7(C).” “Thus, nondisclosure of the redacted names under Exemption 7(C) ‘remains justified where, as here, the public interest in disclosure is virtually nonexistent.’”
“The Court [then] considers the foreseeable harm requirement.” “As [the] Court has noted, fulfilling the terms of exemptions outside Exemption 5 ‘goes a long way to meeting the foreseeable harm requirement.’” “The FBI meets its burden under the foreseeable harm requirement.” “It asserts that disclosure of these individuals’ names and identifying information would cause invasions of privacy, subject them to harassment, potential reprisal, derogatory inferences, and suspicion.” “‘These predicted results of disclosure are exactly what Exemption 7(C) seeks to prevent[.]’” “The FBI has thus shown a risk of foreseeable harm from disclosure of this information and has therefore properly invoked Exemption 7(C).”
- Waiver and Discretionary Disclosure, Waiver: The court holds that “[plaintiff] does not carry [his] burden.” “He offers a long list of names that allegedly appeared ‘in the Government’s Press Releases[ ] in relation to Plaintiff's criminal case,’ plus names of people indicted in his criminal case and testifying witnesses.” “But he does not specify which press release, and he does not show that the release also contained the individuals’ ‘identifying information.’” “Nor does he provide a trial transcript or other court document that contains the allegedly released information.” “Merely listing names and referencing press releases is not enough.”
- Exemption 7(D): The court relates that “[t]he FBI applied this exemption to individuals and non-federal law enforcement personnel who provided information under express or implied assurances of confidentiality.” “The FBI attests that the individuals conveyed critical information about potential crimes and ‘were in a position to have ready access to and/or knowledge about investigative targets and their involvement in the multiple crimes’ for which [plaintiff] was convicted.” “If exposed, such individuals could face reprisal including violent threats and physical harm.” “As for express confidentiality, the FBI cites pages containing the designation ‘CI’ for ‘confidential informants’ to argue that this designation ‘is a positive indication these individuals entered into an official, confidential relationship with the FBI or another law enforcement agency[.]’” “Similarly, the FBI cites pages containing ‘confidential source’ designations for local or state law enforcement personnel.” “As for implied confidentiality, the FBI points to ‘its longstanding agreements with [some] agencies that it will protect [them] and their information from disclosure.’” “And the FBI explains that a combination of factors – including the singularity of the information, likelihood the informants could be identified, the proximity of individuals to the investigative subject, and the criminal acts described – caused the FBI to infer that these individuals provided information to the FBI only because they thought it would be held in confidence.” The court finds that, “[h]ere, the character of the crime is indeed severe.” “[Plaintiff] ‘was charged as the head of an 18-year Continuing Drug Conspiracy and Continuing Criminal Enterprise (CCE),’ and he is serving three life sentences for the CCE and two counts of ‘Murder While Engaged in a Drug Crime.’” “And the FBI attests that the sources for which it claims implied confidentiality have proximity to the investigative subject and events they described.” “More, [plaintiff’s] case involves the type of information that the Circuit held sustains an implied grant of confidentiality.” “The FBI asserts that disclosure of the informants’ identifying information could subject them to ‘reprisal,’ ‘defamation,’ ‘violent threats,’ and even ‘physical harm or murder.’” “The FBI therefore properly invoked implied confidentiality.”
“The FBI also carries its foreseeable harm burden.” “The FBI asserts that it ‘must honor requests for confidentiality’ from the agencies with which it works lest the agency decline to share sensitive information in the future.” “And the FBI contends that releasing the information it withheld under Exemption 7(D) ‘could greatly harm the FBI's effectiveness in investigating criminal acts.’” “More, the FBI notes the potential for violence against its informants and other risks of reprisal.” “The Court thus finds that the FBI satisfies its burden to show foreseeable harm, and that it properly invoked Exemption 7(D).”
- Exemption 7(E): “The Court therefore will grant summary judgment to the FBI on its withholdings under this exemption.” First, the court finds that “[t]he FBI properly withheld ‘the identifiers of sensitive investigative [non-public] databases and database search results.’” “It plausibly attests to multiple ways disclosure of such information would aid criminals in acquiring ‘insight into the available tools and resources the FBI uses to conduct criminal and national security investigations’ and jeopardize the FBI’s investigative function and effectiveness by, among other concerns, providing ‘criminals with the opportunity to corrupt or otherwise destroy [stored] information.’” Second, “[t]he FBI properly withheld non-public surveillance information ‘concerning the targets, dates, locations, types of devices, and installation information utilized in surveillance operations’ of Kendrick’s investigation and current investigations.” “Recognizing that the use of surveillance is ‘publicly known,’ the FBI plausibly explains how ‘disclosure of [the] non-public details . . . would allow subjects of FBI investigations and others to develop and utilize countermeasures to defeat or avoid different types of surveillance operations, thus rendering the techniques useless to the FBI and other law enforcement agencies.’” Third, “[t]he FBI properly withheld ‘the methods’ it ‘used (and may still use) to collect and analyze information obtained . . . within the context of the investigation’ of [plaintiff] and other subjects engaging in criminal activity.” “The FBI attests that releasing such information would, among other risks, ‘enable criminals to educate themselves about the methods employed to collect and analyze information’ and ‘allow them to take countermeasures to circumvent these methods and continue to engage in violations of federal law.’” Fourth, “[t]he FBI properly redacted ‘non-public, internal web addresses,’ which if released would ‘provide criminals with specific targets for cyber-attacks or other attacks on the FBI’s and other law enforcement agencies’ secure communications.’” “The FBI attests that, among other risks, ‘[c]riminals could use this information to gain unauthorized access to the FBI’s and other law enforcement agencies’ systems and view or manipulate sensitive investigative data, interfere with the FBI’s and other law enforcement agencies’ nonpublic intranet protocol, or hinder law enforcement’s ability to enforce the law by disrupting internal communications.’” “If disclosed, the effectiveness of the agencies’ information systems could decrease, enabling ‘criminals to circumvent the law.’” Fifth, “[t]he FBI properly withheld ‘non-public details about undercover operations,’ and plausibly explained why ‘publicizing details concerning FBI undercover investigative techniques is counterintuitive.’” “Releasing such information would, among other harms, ‘allow current and future subjects of FBI investigations and other potential criminals to develop and utilize countermeasures and to defeat or avoid undercover operations, thus rendering the technique useless to the FBI and other law enforcement agencies.’” Sixth, “[t]he FBI properly redacted ‘the location and identity of an FBI unit involved in the investigation of [plaintiff],’ . . . ‘to prevent criminals from adjusting their behavior and activities to circumvent law enforcement efforts’ . . . .” “The FBI attests that releasing such information ‘could reveal additional investigative subjects and non-public, physical areas of interest of the investigation, and, when taken together with other location information’ would ‘establish a pattern or mosaic’ that criminals could use to alter their behavior and to avoid detection.” Seventh, “[t]he FBI properly redacted ‘the monetary payment amount requested by FBI personnel and paid by the FBI to implement particular investigative techniques employed’ in Kendrick’s investigation.” “Disclosing such information ‘would reveal the FBI’s level of focus on certain types of law enforcement or intelligence-gathering efforts’ and ‘give criminals the opportunity to structure their activities in a manner that avoids the FBI’s strengths and exploits its weaknesses.’”
“The proper assertion of 7(E) goes a long way to show the risk of foreseeable harm from disclosure.” “Indeed, the agency has shown that self-evident risk.” “Disclosing these seven categories of information would inform criminals about how they may structure their behavior to evade the FBI and deprive it of valuable intelligence.” “Indeed, the FBI asserts that disclosure of the withheld information greatly reduces its effectiveness, in some cases rendering the investigative technique ‘useless.’” “The FBI has therefore met its burden on foreseeable harm.”
Court Decision Topic(s)
District Court opinions
Exemption 6
Exemption 7
Exemption 7(C)
Exemption 7(D)
Exemption 7(E)
Exemption 7, Threshold
Litigation Considerations, Adequacy of Search
Waiver and Discretionary Disclosure
Updated November 14, 2022