Price v. DOJ, No. 18-1339, 2020 WL 3972273 (D.D.C. July 14, 2020) (Cooper, J.)

Price v. DOJ, No. 18-1339, 2020 WL 3972273 (D.D.C. July 14, 2020) (Cooper, J.)

Re:  Requests for records concerning investigation and prosecution of particular child pornography cases as well as general information about procedures and employees

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; denying plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he Court grants summary judgment to the agency only with respect to its searches in response to [three Office of Justice Programs ("OJP") requests]."  Responding to plaintiff's arguments regarding these three requests, the court finds that "it is well established that an 'agency generally need not "search every record system"' under the sun."  "Here, the agency reasonably exercised its 'discretion to confine its inquiry to a central filing system if additional searches are unlikely to produce any marginal return.'"  "Nor is an agency obligated to 'use the search terms proposed' by a plaintiff."  "Here, the agency chose search terms that closely paralleled the language of [plaintiff's] own requests, and [plaintiff] does not offer any evidence that the agency's queries were not reasonably calculated to turn up responsive documents."
  
  "The Court cannot be as sure, however, that the agency's search was reasonably calculated to recover all documents responsive to [one request]."  "In that request, [plaintiff] sought [certain] case tracking reports made [in one case]."  "As [plaintiff] points out, the most specific search term – the case number – is conspicuously missing."  "Nor has the agency established beyond material doubt that it conducted a reasonable search in response to [another request]."  The court holds that "the declaration does not elaborate on what was done to search these materials for responsive documents, such as the search methodology or search terms (if any)."  "The record is also insufficient with respect to the agency's search in response to [another request]."  The court holds that "the record is devoid of details on what type of search, if any, [defendant] did in response to [this request]."  "Finally, the record is even thinner with respect to [three requests]."  "[Defendant's] Declaration merely recites that '[a] reasonable search was conducted and completed of all locations likely to contain the requested records,' without providing any additional detail on the search protocol, locations, methodology, or terms used."
  
  "By contrast, the record establishes that the Criminal Division conducted reasonable searches in response to [one request]."  The court relates that the Criminal Division's "Declarations identify the record systems and locations that were searched, explain why the relevant information could reasonably have been expected to be found in those . . . locations and systems, and describe the scope and methodology of the searches."  "Although the declarations do not provide search terms, most of the Criminal Division's searches were done manually, . . . so search terms were not used or needed . . . ."  "That the Criminal Division located all but one of the six requested documents further supports the inference that the searches were reasonable."
   
• Exclusions:  The court relates that, "[o]ther than these boilerplate disclaimers, there is no indication in the record that the agency relied on Section 552(c) to exclude any of [plaintiff's] requests from its FOIA processing."  "To the extent that the agency did apply Section 552(c) exclusion(s), the appropriate procedure is for the agency to submit an ex parte declaration explaining its reliance, if any, on the exclusion(s)."  "Out of an abundance of caution, the agency is directed on remand to submit an ex parte declaration either confirming that it did not rely on § 552(c) exclusions or justifying their use."
   
• Exemption 2:  "The Court will . . . deny summary judgment on the Criminal Division's Exemption 2 withholdings and remand to the agency to clarify which segments of information also fall under other exemptions."  The court finds that "[t]he Criminal Division asserted Exemption 2 over certain portions of [the High Technology Investigations Unit ("HTIU") manual]."  "The information redacted included the names of . . . personnel and the identification of their supervisor for performance review purposes, personnel management information, the section's recruiting plan for computer forensic scientists and interns, orientation and training programs, email lists, and continuing education practices."  [Defendant] attests that "'[t]his information was created exclusively for the internal use of HTIU to assist computer forensic specialists with the implementation of their roles and responsibilities related to evidence control and security.'"  "But, the [Supreme Court] expressly rejected an interpretation of Exemption 2 that would 'encompass[ ] records concerning an agency's internal rules and practices for its personnel to follow in the discharge of their governmental functions.'"  "Exemption 2 does not reach a 'practice/rule [that] is for personnel,' the Court explained, but rather only encompasses a 'practice/rule [that] is about personnel – i.e., that . . . relates to employee relations or human resources.'"  "Exemption 2 only encompasses information that pertains solely to 'the conditions of employment in federal agencies – such matters as hiring and firing, work rules and discipline, compensation and benefits.'"  "However, 'it does not exempt matters [that are] subject to ... a genuine and significant public interest[.]'"  "The agency's withholding of 'personnel management information' and its 'recruiting plan' might qualify under this narrower standard, but the Court cannot be sure without further description of the information."  "The remaining information withheld by the agency appears to relate to 'a broader set of agency rules and practices' to which Exemption 2 does not extend, . . . such as internal training documents, . . . and internal phone numbers . . . ."
   
• Exemption 6:  "The Court . . . grants summary judgment to the agency on the Criminal Division's Exemption 6 withholdings . . . ."  First, the court finds that "the [Child Exploitation and Obscenity Section ("CEOS")]'s phone list, organizational chart, and portions of the HTIU Manual pertaining to management and organization . . . meet Exemption 6's threshold requirement of qualifying as 'personnel' or 'similar files.'"  The court relates that "[t]he Criminal Division withheld . . . the names of employees and their supervisors who do not interface with the public; . . . all employees' personal, government-issued cell, and direct office phone numbers; conference room phone numbers; guard and security phone numbers; information technology phone numbers; certain administrative services phone numbers; and office locations."  The court holds that "[t]he Government has established that substantial privacy interests would be implicated by disclosure of the information withheld."  "[Defendant] attests that withholding of the information at issue was necessary to protect . . . employees from 'harassment and unwanted publicity,' especially '[c]onsidering the sensitive law enforcement work that [the] personnel conduct related to child exploitation and obscenity matters.'"  "Moreover, [defendant] attests, 'disclosure would reveal job sensitive performance appraisal-related information that is usually maintained in an employee's personnel-related file.'"  "Withholding of the requested information is therefore necessary to preserve the employees' 'effectiveness in handling their respective prosecution or investigation functions and duties.'"  "Compared to these substantial privacy interests, [plaintiff] identifies little public benefit to be derived from disclosure."
   
• Exemption 7, Threshold:  The court relates that "[t]he Criminal Division asserted Exemption 7 over . . . an index of HTIU cases . . . and portions of . . . the HTIU Manual . . . ."  "They were created by law enforcement agencies, which 'receive a special deference in their claims of law enforcement purpose' . . . and include information on specific criminal case files as well as operational techniques and methods used to facilitate the investigation of computer-related child exploitation offenses."  The court holds that "[t]hese documents easily clear the threshold hurdle of 'being comp[il]ed for law enforcement purposes,' and [plaintiff] does not contend otherwise."
   
• Exemption 7(C):  Regarding defendants' withholding of "internal case identifiers, names of third parties against whom charges were filed, and source agency information related to the investigations and prosecutions," the court holds that "[t]he D.C. Circuit has 'consistently' applied Exemption 7(C) to protect 'names or other information identifying individuals appearing in law enforcement records, including investigators, suspects, witnesses, and informants.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "[n]or has [plaintiff] shown that [the material withheld under Exemption 7(C)] was reasonably segregable."  "[Defendant] attested that 'all pages of records were reviewed line-by-line,' that 'every effort has been made to release all segregable information to plaintiff,' and that the document was withheld in full because 'either there was no reasonably segregable material or any non-exempt information amounted to essentially meaningless words or phrases.'"  "These attestations suffice to establish that [the material] was not reasonably segregable . . . ."
   
• Exemption 7(E): The court holds that "summary judgment is granted as to the entirety of the Criminal Division's Exemption 7(E) withholdings."  The court relates that "[t]he Criminal Division withheld portions of . . . the HTIU Operations Manual . . . under Exemption 7(E)."  "The withholdings included information on evidence control and security, including evidence submission, storage, check-in and check-out (including tracking and acquisition documentation); evidence quality assurance procedures; software information; evidence systems information, including security procedures; hardware and software information and configurations; database and application maintenance; and the control requirements and operating procedures necessary to handle evidence."  The court agrees with defendant that "[d]isclosure of [defendant's] evidence control and security procedures . . . 'could enable . . . targets to take countermeasures to circumvent the effectiveness and integrity of the process,' 'reveal where investigatory information is maintained on the Criminal Division network system because network file path information is contained in the operations manual,' and enable targets 'to discover and target vulnerabilities in the evidence control system or security plan.'"  "The Court is satisfied that '[t]hese statements logically explain how the data could help criminals circumvent the law, and that suffices here to justify invocation of Exemption 7(E).'"  "The Criminal Division also withheld information in the HTIU Manual that pertains to training and compliance requirements . . . including forensic specialists regarding evidence control."  "Although [defendant's] description of the training and quality assurance materials withheld is somewhat generalized, . . . [defendant] attested that 'only that information which would reveal the techniques and procedures related to evidence control, analysis, and security w[as] withheld' . . . ."  "And [plaintiff] points to nothing in the record that would indicate that non-evidence related training or quality assurance materials were withheld."  "It therefore can be said that 'releasing information about training and the associated . . . procedures is tantamount to releasing information about the actual employment of the procedures and techniques themselves.'"