Wednesday, July 17, 2013
Re: Request for records concerning protest movement and encampment known as "Occupy Wall Street" Disposition: Granting defendant's motion to dismiss or for summary judgment
- Search: The court holds that defendant's "[d]eclaration makes clear that [defendant] conducted good faith, reasonable searches of the systems of records likely to possess records responsive to Plaintiffs' requests." The specific systems searched were defendant's "electronic repository for information compiled for law enforcement purposes as well as administrative, applicant, criminal, personnel, and other files." Additionally, "[b]ecause the Occupy Movement has been widely publicized, [defendant] also conducted text searches . . . ." The court finds that defendant "has shown that it conducted searches reasonably calculated to discover the requested documents." The court notes that defendant "was not required to search every record system; it was only required to conduct a reasonable search of those systems of records likely to possess the requested information." The court finds moot plaintiff's contention that defendant's search was inadequate because defendant "released a two-page document . . . in response to a similar FOIA request" because defendant located and released this document to plaintiff. The Court also rejects plaintiff's contention that other responsive documents exist because "[p]laintiffs' speculation that additional documents exist does not affect the analysis of the reasonableness of [defendant]'s searches." "Defendant]'s Declarations are presumed to be in good faith, and they are not rebutted by speculative claims that other responsive records exist." The court also rejects plaintiff's contention that "because some of the records were distributed to other [defendant] offices and systems . . . [defendant] was required to search those offices and systems as well." Instead, the court finds that the defendant's search "would have located records at the offices listed on the distribution lists."
- Exemption 3: The court finds that "[p]laintiffs' challenge to withholding under Exemption 3 is without merit." Despite, plaintiff's assertion "that Exemption 3 does not exempt the administrative portion of a subpoena, such as where and when the subpoena was issued, and that [defendant] should be required to segregate this information and release it," the court finds that defendant "has been very clear that it withheld 'only that information which explicitly discloses matters occurring before a Federal Grand Jury.'"
- Exemption 5: The court finds that defendant properly used Exemption 5. The court notes that defendant, "withheld a one-page record consisting of a FOIA analyst's notes." The court determines that "[t]he document withheld is deliberative, as it contains the internal dialogue among [defendant] personnel about Plaintiffs' FOIA requests, and it is predecisional as it predates the final disposition of Plaintiffs' requests."
- Exemptions 6, 7C, 7D: The court finds that Exemptions 6, 7C, and 7D were correctly invoked by defendant. The court notes that defendant "withheld the names and identifying information of federal and state law enforcement officers and personnel . . . as well as that of individuals who provided information to [defendant] under implied assurances of confidentiality or who were merely third parties mentioned in the records." The court discusses the fact that "[p]laintiffs provided executed privacy waivers for nine additional individuals, and asked [defendant] to reprocess the FOIA requests." The court notes that defendant, "agreed and reviewed the records for names and information associated with the nine individuals . . . [but] . . . did not find any additional records that could be released 'as those names do not appear in the material that was processed as part of [P]laintiffs' FOIA requests.'" Therefore, the court finds that defendant "has provided sufficient detailed information to support its application of Exemptions 6, 7(C), and 7(D)."
- Exemption 7(E): The court finds that defendant "properly relied upon Exemption 7(E) in withholding certain records," because defendant has demonstrated that, "[r]elease of such information would enable criminals to discover techniques and procedures and the effectiveness of law enforcement would suffer." The court states that the information defendant withheld consists of "records that could disclose procedures and techniques [defendant] uses in national security investigations," "file numbers used in such investigations because such numbers might reveal investigative interests and priorities," "the location, identity, and expertise of the investigating [defendant] units," "information contained in FOIA processing notes," "internal nonpublic telephone numbers and web site addresses used frequently by personnel to exchange investigative information," "database information and search results," "information collection and analysis information describing techniques," and "intelligence analyst procedures used by the Central Florida Intelligence Exchange to conduct national security investigations." The court finds that defendant "has adequately explained the nature of the records it withheld and its reasons for doing so."
- Exclusions: The court states that it has, "reviewed Plaintiffs' claim and the ex parte [defendant] [d]eclaration and has determined that any § 552(c) exclusion, if employed, was amply justified." The court notes that, "DOJ policy provides that when the Government provides a Glomar response, it must present a declaration to the court for in camera review." The court finds that defendant "complied with this policy here." "In response to Plaintiffs' demand for confirmation regarding whether [defendant] excluded any records under 5 U.S.C. § 552(c), [defendant] presented ex parte, for in camera review, [an ex parte declaration]."
- Segregability: The court determines that the responsive material was adequately segregated by defendant. The court finds that, "[m]aterial that was withheld was exempt from disclosure or was so intertwined with protected material that segregation was not possible." Additionally, the court "finds that these submissions adequately specify 'which portions of the document[s] are disclosable and which are allegedly exempt.'" Moreover, "with respect to the records withheld in full, the court concurs that any nonexempt portions are so intertwined with exempt portions that no portion can be disclosed."
- Special Counsel Provision: The court rejects Plaintiff's request to "refer [defendant] to the Office of Special Counsel for investigation," because the court finds that, "[p]laintiffs' claim of wrongful delay and arbitrary action by [defendant] is unfounded." The court notes that "[p]laintiffs made six separate FOIA requests," many of which "contained specific criteria, such as date parameters, thereby compelling [defendant] to take additional time to sort through its records to remove nonresponsive records." Additionally, the court recognizes that defendant "took the extra step of conducting text searches . . . to identify potentially responsive material." Therefore, the court finds that defendant "cannot be faulted for being thorough in its searches," and "[p]laintiffs' request for a special investigation is baseless."
Updated August 6, 2014