McClanahan v. DOJ, No. 14-483, 2016 WL 4574630 (D.D.C. Sept. 1, 2016) (Howell, J.)

McClanahan v. DOJ, No. 14-483, 2016 WL 4574630 (D.D.C. Sept. 1, 2016) (Howell, J.)

Re: Requests for all Tables of Contents for CIA's in-house journal, records concerning American detained in Yemen, and records concerning plaintiffs

Disposition: Granting defendant's renewed motion for summary judgment

• Litigation Considerations, Adequacy of Search: "[T]he Court concludes that the FBI has satisfactorily detailed its searches for responsive records and decisions made regarding the plaintiffs’ specific search requests, and that the searches conducted were adequate." The court first finds "that the FBI's searches of the CRS, the EUSLR, the two targeted email accounts, and the Washington Field Office were reasonably adequate." The court finds that "the [] explanations for determining that other record systems were not reasonably likely to contain additional responsive records are highly plausible." Additionally, the court finds that "plaintiffs' contention that the FBI failed to search all record systems reasonably likely to contain responsive materials because it failed to search all of the systems specifically requested by the plaintiffs is unavailing[]" because "the reasonableness of a search is not measured against the scope dictated by a requester's search instructions, particularly when those instruction do not provide 'clear and certain' 'lead[s].'" Second, responding to plaintiff's argument, the court finds that "a date-of-search cut-off has routinely been found to be reasonable, even if the agency performed subsequent searches."
   
• Exemption 3: "After reviewing the thorough ex parte, in camera declarations submitted in this case, the Court is satisfied that the records withheld by the FBI contain 'intelligence methods and sources,' which the National Security Act is designed to protect from unauthorized disclosure." The court relates that "[h]ere, the FBI invokes the coverage of Exemption 3 pursuant to the National Security Act of 1947."
   
• Exemption 5, Attorney Work-Product & Procedural Requirements, "Reasonably Segregable" Obligation: "[T]he Court concludes, based upon the seven extensive declarations by the FBI, that information described as subject to Exemption 5 was properly withheld." The court relates that "the FBI avers that information withheld under Exemption 5 belongs to four categories of email communications: (1) litigation preparation emails; (2) litigation communication emails; (3) inter-agency litigation and case consultation emails; and (4) intra-agency case consultation emails." The court finds that, "since these withheld records are 'documents . . . that are prepared in anticipation of litigation or for trial by . . . [a] party or its representative,' . . . these records are properly withheld under Exemption 5." The court also rejects plaintiff's segregability argument because "once 'a document is fully protected as work product, [ ] segregability is not required.'"
   
• Exemption 7(E): "[T]he Court finds that the information was properly withheld under Exemption 7(E)." The court relates that "the FBI avers that the pertinent records were 'compiled and/or created in furtherance of the FBI's responsibilities of investigating the mishandling of classified national security information and of conducting national security background investigations of individuals to determine whether they are suitable to have access to classified national security information.'" "Three groups of records were withheld under Exemption 7(E): (1) 'database search results,' . . . (2) references to 'types and dates of investigations,' . . . and (3) 'internal non-public intranet web addresses of its database and webpages[.]'" "The FBI further avers that the disclosure of such information would tend to reveal investigative techniques and procedures that could 'enable criminals to employ countermeasures to avoid detection' and aid them in 'circumvent[ing] the law.'" The court also finds that "[c]ontrary to the plaintiffs' bald allegation, the FBI has sufficiently explained how disclosure of the withheld information would allow wrongdoers to circumvent the law."
   
• Exclusions: The court relates that, "[h]ere, the plaintiffs have speculated that the FBI might be relying on the exclusion contained in § 552(c)." "Consequently, pursuant to the FBI's standard policies, the FBI has submitted ex parte, in camera declarations that 'address the exclusion claim.'" "The Court has conducted a full review of the claim and, if such an exclusion in fact were employed, it was and continues to remain, amply justified."
   
• Litigation Considerations, "Reasonably Segregable" Requirements: The court holds that "[t]he FBI has satisfied its segregability obligations here." The court relates that "the FBI has attested that all reasonably segregable information has already been released and the remaining withheld information 'would [either] trigger foreseeable harm to one or more interests protected by the cited FOIA exemptions . . . or . . . [is] so intertwined with such material that it could not be reasonably segregated for release.'" "The plaintiffs, in opposition, have offered little other than conclusory statements that the FBI failed to reasonably segregate or that it failed to explain why some materials cannot be reasonably segregated."