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Platsky v. FBI, No. 20-0573, 2021 WL 2784530 (S.D.N.Y. July 2, 2021) (Cronan, J.)

Date

Platsky v. FBI, No. 20-0573, 2021 WL 2784530 (S.D.N.Y. July 2, 2021) (Cronan, J.)

Re:  Requests for records concerning whether plaintiff's name was on FBI watch lists

Disposition:  Granting defendant's motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  The court relates that "[plaintiff] does not appear to challenge the adequacy of the FBI's searches with regard to his FOIA request."  "Still, the FBI filed [a] Declaration, which explains the searches conducted and the FBI's grounds for refusing to confirm or deny the existence of certain records."  "The Court has reviewed the [FBI's] Declaration."  "Based on this declaration's descriptions of the searches performed, the Court grants summary judgment in favor of the FBI on this issue."
     
  • Exemption 7(E):  The court holds that "[t]he FBI's response to [plaintiff's] FOIA request was proper."  "The agency properly tethered its Glomar response to FOIA Exemption 7(E) by refusing to confirm or deny the existence of the requested information."  "Summary judgment in favor of the FBI is thus warranted because the agency's affidavit 'describe[s] the justification[ ] for nondisclosure with reasonably specific detail, demonstrate[s] that the information withheld logically falls within the claimed exemption, and [is] not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'"  The court notes that "courts around the country routinely grant summary judgment in favor of the FBI when the agency issues a Glomar response tethered to FOIA Exemption 7(E) in response to a request for information regarding watch lists."  The court relates that "[t]he FBI explained that 'the consolidated Terrorist Watch List is one of the most effective counterterrorism and law enforcement tools available to the U.S. Government' because it allows 'front-line screening agencies to positively identify known or suspected terrorists trying to obtain visas, enter the country, board aircraft, or engage in other activity.'"  "Further, the FBI stated that '[g]iven the sensitive information contained in the watch list, the mere acknowledgement of the existence or non-existence of responsive records would trigger harm.'"  "And '[r]evealing this fact alone could enable the targets of the watch list to avoid detection or to develop countermeasures to circumvent the ability of the FBI to effectively use this important law enforcement technique, therefore, allowing circumvention of the law.'"  "Moreover, the FBI asserted that 'to confirm [plaintiff's] or any individual's watch list status reasonably could be expected to compromise investigative operations as well as endanger investigative or intelligence sources or methods.'"  "In addition, the FBI explained that '[i]t is not sufficient for the FBI to issue a Glomar response to individuals in response to only certain requests (for example, those requests by individuals who are on a watch list), because that differential treatment could itself be telling.'"  "Therefore, 'the government has determined that a consistent, across-the-board Glomar response – pursuant to . . . FOIA Exemption [ ](7)(E) – to all first-party requests' under FOIA 'neither confirming nor denying an individual's watch list status,' is the best way of ensuring that these harms do not occur."
Court Decision Topic(s)
District Court opinions
Exemption 7(E)
Litigation Considerations, Adequacy of Search
Updated July 22, 2021