Labow v. DOJ, No. 11-1256, 2017 WL 3531501 (D.D.C. Aug. 16, 2017) (Lamberth, J.)

Labow v. DOJ, No. 11-1256, 2017 WL 3531501 (D.D.C. Aug. 16, 2017) (Lamberth, J.)

Re:  Request for records concerning plaintiff

Disposition:  Denying plaintiff's motion to reconsider; 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 3:  First, "[the] Court finds that the single sentence the FBI withheld from [plaintiff] pursuant to the Pen Register Act does contain information that is protected by the Act, and is properly withheld."  The court relates that "[t]he FBI here is not protecting a sealed pen register order itself, but is instead withholding information that would reveal 'pen register results obtained on a specific date, the identity of a third party's phone number registration, as well as the name of another third party individual potentially using the same phone number.'"  The court finds that "[i]nformation at the crux of a pen register order that, as here, happens to appear in a document outside of the order itself and would necessarily compromise the order, is therefore information that falls within the scope of Exemption 3's protection as triggered by the Pen Register Act."  "[The] Court and other courts in this district have accordingly and consistently held that 'information regarding the target of pen registers, and reports generated as a result of the pen registers' is information that 'falls squarely under' the Pen Register Act."
  
  Second, "[t]he Court has reviewed the FBI's proposed withholdings [under Exemption 3 and Federal Rule of Criminal Procedure 6(e)] and determined that, with one exception, the information, if released, would indeed 'tend to reveal some secret aspect[s] of the grand jury's investigation.'"  The court finds that "[t]he information and documents at issue are consistent with the FBI's previous representations in this case and, aside from the one exception, the agency's withholdings are reasonable and narrowly tailored to protect information that Congress intended be protected, because they would, in fact, tend to reveal targets and/or the direction of one or more grand jury investigations."  However, with regard to "a copy of a letter sent from the U.S. Attorney to a subpoena target[,]" the court finds that "[t]he body of the letter itself contains a sunset date concerning the subpoena's non-disclosure requirement, which lapsed several years ago."  "Although the FBI may properly withhold under Rule 6(e) the specific information about the target of the subpoena and the information identifying the Assistant U.S. Attorney who issued the letter, the Court finds the FBI has not provided an adequate justification for withholding the body of the U.S. Attorney's letter."  Overall, the court holds that "Rule 6(e) has been determined to qualify as an Exemption 3 statute because it leaves agencies 'no discretion' to disclose to a FOIA requester information that falls within its scope."  "In the alternative, the Court finds that Rule 6(e) also qualifies as an Exemption 3 withholding statute under the second prong, in that it 'refers to particular types of matters to be withheld.'"  "Under a subpart (ii) statute, the Court balances the public's (and plaintiff’s) interest in transparency, with an agency's legitimate, statutorily recognized need for secrecy."  "The grand jury material the FBI seeks to withhold here is directly connected to the type of matter, the secrecy of which Rule 6(e) is designed to protect."  "And here, it is not merely the FBI's secrecy interest at stake, . . . but also that of a grand jury."  "The balance weighs heavily in favor of withholding the information at-issue as the FBI has done, because revealing the information would implicate the workings of a grand jury and potentially compromise a criminal investigation." 
   
• Litigation Considerations, Waiver of Exemptions in Litigation:  The court holds that "[t]o the extent the FBI attempts now to assert Exemption 7(E) to withhold the same information [as is covered by Exemption 3] . . . , the Court rejects its claim as untimely."  The court explains that "[a] hallmark of FOIA litigation is that the government generally must claim all applicable exemptions at the same time."