N.Y. Times Co. v. FBI, No. 22-3590, 2024 WL 3638090 (S.D.N.Y. Aug. 1, 2024) (Oetken, J.)

N.Y. Times Co. v. FBI, No. 22-3590, 2024 WL 3638090 (S.D.N.Y. Aug. 1, 2024) (Oetken, J.)

Re:  Request for report from FBI’s Behavioral Analysis Unit (“BAU”) on phenomenon known as “Havana Syndrome”

Disposition:  Granting in part defendant’s motion for reconsideration following court’s grant in part and denial in part of parties’ cross-motions for summary judgment

• Exemption 7(E); Waiver & Discretionary Disclosure, Waiver:  The court relates that “[a]lthough the FBI invoked FOIA Exemption 7(E) to withhold the entire Report, the FBI is not seeking reconsideration of all of the portions of the Report that the Court determined were not exempt from disclosure.”  “While reserving the right to appeal the Court’s Order in its entirety, the FBI focuses its motion on specific passages the Court ordered disclosed that fall into three categories:  (1) information the Court identified as ‘describing the BAU’s reliance on interview transcripts,’ . . . (2) information the Court identified as ‘factual background of the investigation and its conclusions,’ . . . ; and (3) the name of a non-governmental FBI partner.”  “The Court addresses each of these categories of information in turn.”  First, regarding the “information in the Report describing the BAU’s reliance on interview transcripts,” the court relates that “[b]ased on its in camera review, the Court ordered the disclosure of portions of the Report describing the BAU’s reliance on interview transcripts that it determined were segregable from the Report’s descriptions of other investigative techniques that are not generally known to the public.”  “The FBI contends that the Court overlooked clear Second Circuit case law on the doctrine of official acknowledgment when it relied on public reporting, rather than an official disclosure, to conclude that the FBI improperly invoked Exemption 7(E).”  “This argument fails, however, because it ‘import[s] the waiver standard of official disclosure into Exemption 7(E)’ and thereby ‘conflates two distinct legal doctrines.’”  The court finds that “[t]he official disclosure doctrine does not apply . . . in the context of determining whether a claimed FOIA exemption is valid.”  “In this case, the Court did not conclude – and need not have concluded – that [certain] reporting in The New Yorker had the effect of waiving the FBI’s right to invoke Exemption 7(E).”  “Rather, the Court concluded that the public reporting on the BAU’s reliance on interview transcripts to conduct its analysis undermined the FBI’s argument that the techniques at issue were not known to the public.”  “Accordingly, the Court determined that the FBI failed to sustain its burden of ‘demonstrat[ing] logically how the release of the requested information might create a risk of circumvention of the law.’”  “The FBI offers two additional arguments to justify withholding the specific passages at issue.”  “Neither is persuasive.”  “First, the FBI argues that disclosure would create a risk of circumvention of law because ‘foreign governments are more likely to take action in response to an official disclosure’ than unconfirmed reporting.”  The court finds that “the FBI has failed to demonstrate logically how the official disclosure of information that has already been widely disseminated in public reporting would lead to such a result.”  “Second, the FBI contends that ‘the Court has directed the disclosure of information that is far more specific and contextual than any information contained in media reports.’”  “A comparison between The New Yorker article and the four challenged passages of the Report undermines the FBI’s assertions . . . .”  “Accordingly, upon reconsideration, the Court reaffirms its conclusion that the FBI improperly invoked Exemption 7(E) to withhold the passages at issue describing the BAU’s reliance on interview transcripts.”
  
  “The FBI also seeks reconsideration of the decision to order disclosure of information the Court identified as ‘factual background of the investigation and its conclusions.’”  “The FBI contends that ‘[t]hese passages do not consist of segregable, non-exempt facts and findings, but rather would reveal the particular techniques and procedures the BAU applied to factual information and how the application of those techniques and procedures resulted in particular conclusions.’”  “In seeking reconsideration, the FBI does not point to any intervening changes in the law or newly discovered facts.”  “Instead, the FBI contends that reconsideration is warranted to correct clear error in the Court’s decision and that the supplemental declaration is necessary to explain why the release of the specific passages the Court ordered disclosed might create a risk of circumvention of the law.”  “Only in light of the broader interests at stake is the Court willing to grant reconsideration.”  “The Court reaffirms its determination that these passages discuss the BAU investigation’s facts and high-level conclusions without revealing any investigative techniques whose disclosure might create a risk of circumvention of law.”  “Accordingly, the Court reaffirms that the FBI has improperly invoked Exemption 7(E) to withhold [these] passages . . . .”  “Based on the greater detail provided in the FBI’s supplemental declaration, however, the Court determines that the FBI has sustained its burden regarding the portions of the Report at issue that go beyond this highest level of generality.”  “Therefore, upon reconsideration, the Court concludes that the portions of the Report in this category, aside from the . . . passages specified above, were properly withheld under Exemption 7(E).”
  
  “The Court grants reconsideration of its decision ordering the disclosure of the entirety of page 1 of the report except for the final section heading . . . because it overlooked the reference therein to one of the FBI’s non-governmental partners.”  “Upon reconsideration, the Court agrees with the FBI that disclosure of that information would expose that entity to foreign adversaries and also potentially jeopardize the FBI’s relationship with that partner.”  “The FBI has thus carried its burden of ‘demonstrat[ing] logically how the release’ of that information ‘might create a risk of circumvention of the law.’”