Labow v. DOJ, No. 14-5220, 2016 WL 4150929 (D.C. Cir. Aug. 5, 2016) (Srinivasan, J.)

Labow v. DOJ, No. 14-5220, 2016 WL 4150929 (D.C. Cir. Aug. 5, 2016) (Srinivasan, J.)

Re: Request for records concerning requester

Disposition: Affirming in part and reversing and remanding in part district court's grant of DOJ's motion for summary judgment

• Exemption 3: The Court of Appeals for the District of Columbia Circuit "reverse[s] the grant of summary judgment on both challenges to withholdings under Exemption 3 and remand[s] for further proceedings consistent with this opinion." The court relates that "the FBI withheld certain responsive documents and information about [the requester] on the rationale that they were 'specifically exempted from disclosure by statute,' . . . i.e., the Pen Register Act, 18 U.S.C. § 3123(d)." The court first finds that "[t]he statute identifies 'particular types of matters to be withheld,' . . . in that it requires the sealing of '[a]n order authorizing or approving the installation and use of a pen register or a trap and trace device.'" "That description is at least as specific as other statutes which we have held adequately specify 'matters to be withheld' for purposes of Exemption 3." However, the court then finds that, "[b]y its terms, the statute provides for sealing of a pen register order itself, not sealing of any and all information the order may contain even if appearing in other documents." "Although the statute additionally bars disclosures by certain private parties about the existence of a pen register order in the absence of a court order allowing disclosure . . . that limitation does not apply to the government." "As a result, Exemption 3 of FOIA, as regards the Pen Register Act, primarily authorizes the government to withhold a responsive pen register order itself, not all information that may be contained in or associated with a pen register order." The court finds that, "[t]o the extent the statute arguably authorizes withholding documents other than a pen register order, we have no occasion to address the issue because we do not know whether this case involves withholding of any records beyond a pen register order." Therefore, the court "remand[s] for the district court to assess whether the specific information withheld in this case is protected by the Pen Register Act."
  
  Similarly, regarding documents withheld pursuant to Federal Rule of Criminal Procedure Rule 6(e), the court finds that "[t]his court has already held that Federal Rule of Criminal Procedure 6(e) is a qualifying statute under Exemption 3." However, the court finds that "the [district] court provided no explanation of why the records would reveal anything about the investigation, and without knowing more, [the court] do[es] not think they necessarily would." The court finds that "[t]he government's declaration only offers the conclusory statement" and, therefore, the court "remand[s] for the district court to consider whether the release of the documents subpoenaed by the grand jury would reveal something about the grand jury's investigation."
   
• Exemption 7(D): The Court of Appeals for the District of Columbia Circuit holds that "implied confidentiality for purposes of Exemption 7(D)" existed. First, the court finds that "[the FBI's] explanation of the risks of informing on anarchist groups spoke to the potential dangers posed by anarchist extremists in general[.]" Second, the court finds that the FBI "describes the kind of information that, if it were revealed to the public, could be traced to a particular source." Third, the court notes that "all parties agree that the sources did not receive payment." Fourth, the court relates that the FBI "indicate[s] that the sources provided information 'over a period of time that had proven to be reliable.'" The court concludes that, "[c]onsidering the four factors together, we agree with the district court that they suggest the sources expected confidentiality." "Although the sources were not paid, they provided ongoing, singular information about serious crimes." "In those circumstances, the district court correctly sustained the FBI's reliance on Exemption 7(D)."
   
• Litigation Considerations & Exemption 7(A): The Court of Appeals for the District of Columbia Circuit "grant[s] [the requester's] request to vacate the district court's grant of summary judgment to the government with regard to its use of Exemption 7(A)" because "[t]he government has now released the documents it initially withheld under Exemption 7(A)" and "[v]acatur is appropriate when a party moots an issue it won in a lower court, precluding review on appeal and preserving the lower-court opinion as precedent."
   
• Exclusions, The (c)(1) Exclusion: The Court of Appeals for the District of Columbia Circuit holds that, "like the district court, [it has] reviewed the government's submissions about the exclusion in camera." "And [the court], like the district court, will not comment on whether the FBI in fact relied on an exclusion." "Instead, we hold only that no documents have been withheld pursuant to any impermissible use of an exclusion."