Poitras v. DHS, No. 15-1091, 2018 WL 1702392 (D.D.C. Mar. 29, 2018) (Howell, J.)

Poitras v. DHS, No. 15-1091, 2018 WL 1702392 (D.D.C. Mar. 29, 2018) (Howell, J.)

Re: Request for records concerning plaintiff

Disposition: Granting defendants' second motion for summary judgment; denying plaintiff's second cross-motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The court finds that "the FBI has provided sufficient explanation for the withholding and redactions of [certain] documents under Exemption 5."  The court relates that the FBI withheld "three pages from an 'electronic communication' from the New York field office 'documenting and providing intelligence analysis and analytical support for the investigation into [plaintiff's] potential involvement in an ambush on US forces in Iraq.'"  The court finds that "[t]he FBI has explained, in both its declarations and its Vaughn index, the specific agency decision under deliberation in the redacted pages[,]" and, therefore, "[t]he declaration's description, contrary to the plaintiff's arguments, does provide 'a specific agency decision,' . . . being deliberated in the document in question[.]"
   
• Exemption 7:  The court holds that "[t]he FBI has established that its investigation of the plaintiff was realistically based on a legitimate concern that she may have been either an intentional or unwitting tool to film or otherwise document an ambush that resulted in the death of one American soldier and serious injury to several others."  "As the declarations make clear, 'the FBI initiated an investigation on the basis of an allegation and information indicating that the plaintiff may have been involved in an activity constituting a federal crime and/or threat to national security.'"  "Thus, the FBI has established both 'a rational nexus between the investigation and one of the agency's law enforcement duties' and a 'connection between an individual or incident and a possible security risk or violation of federal law,' . . . thereby satisfying the Exemption 7 threshold requirement."
   
• Exemption 7(A):  The court holds that "the FBI properly invoked Exemption 7(A) to withhold ['file numbers of pending FBI investigations']."  The court relates that "the FBI avers, 'the release of this information would interfere with pending and prospective enforcement proceedings, including investigations and prosecutions,' and would 'jeopardize the investigation.'"  "As of the filing of that declaration, the investigations were 'pending' and 'ongoing,' satisfying the temporal requirements of Exemption 7(A)."
   
• Exemption 7(D):  First, the court holds that "the FBI properly withheld confidential information provided by foreign governments."  "According to the FBI, the Foreign Government Information Classification Guide # 1, which 'governs classification of foreign government information that foreign governments have asked the FBI to protect over the course of time,' . . . indicates that 'the foreign agency referenced in the records at issue here requested its relationship with the FBI be classified,' . . . thus providing 'an express assurance of confidentiality[.]'"  Second, "[t]he FBI also withheld information 'regarding an individual source who is a source symbol numbered informant under an express grant of confidentiality.'"  "Given this express grant of confidentiality, the FBI’s withholding of the source's 'name, social security number, phone number, file number, source number, and [ ] type of source expenditures' under Exemption 7(D) was proper."
   
• Exemption 7(E):  The court holds that "the FBI's withholdings under Exemption 7(E) were proper."  The court relates that "[t]he FBI invoked Exemption 7(E) to withhold '(1) sensitive file numbers or sub-file names; (2) internal, non-public email or IP addresses; (3) dates or types of investigations; (4) identity or location of FBI or Joint Units, Squads, or Divisions; (5) collection or analysis of information; (6) investigative focus; (7) law enforcement strategies or techniques for addressing the techniques, tactics or procedures (TTPs) used by an organization; [and] (8) monetary payments for investigative techniques.'"  The court finds that "[t]his information properly was withheld to prevent the disclosure of FBI techniques and procedures and to prevent the dissemination of information that might be gleaned from those techniques and procedures."
   
• Litigation Considerations, Adequacy of Search:  The court holds that "[g]iven the broad nature of the plaintiff's request, a search [by CBP] using her name and date of birth 'can be reasonably expected to produce the information requested.'"  Responding to plaintiff's argument, the court finds that "a search is not automatically rendered inadequate by an agency's failure to locate a specific document . . . or by an agency's refusal to take every step desired by a requester[.]"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "the FBI and the CBP met their segregability burdens by submitting Vaughn indices, in combination with the attestations of their respective declarants, that the responsive documents were reviewed on a line-by-line basis and that no further segregation would be possible."