Project for Priv. & Surveillance Accountability, Inc. v. DOJ, No. 21-2362, 2024 WL 2864191 (D.D.C. June 6, 2024) (Contreras, J.)

Project for Priv. & Surveillance Accountability, Inc. v. DOJ, No. 21-2362, 2024 WL 2864191 (D.D.C. June 6, 2024) (Contreras, J.)

Re:  Request for any correspondence between members of Congress and a federal agency concerning the unmasking of Congressmen and Senators

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Exemption 3:  The court holds that “[t]he FBI made proper use of the exemption in this case.”  “The FBI states that it withheld portions of the requested records because they fall within § 102A(i)(1) of the National Security Act of 1947.”  “The statute mandates that ‘[t]he Director of National Intelligence shall protect, and shall establish and enforce policies to protect, intelligence sources and methods from unauthorized disclosure.’”  “The parties do ‘not dispute that this statute is a withholding statute under Exemption 3.’”  “As such, [plaintiff] does not argue that the records fall outside the scope of § 3024(i)(1), but rather that the agency has not provided the Court with a sufficient explanation to justify invoking Exemption 3, and that the Court should therefore order the FBI to release the unredacted records.”  “The Court finds the FBI’s justifications sufficient.”  “The agency explains that ‘intelligence sources and methods would be revealed if any of the withheld information is disclosed to Plaintiffs’ and that the agency ‘is prohibited from disclosing such information.’”  “The fully and partially redacted pages of the Intelligence Program Policy Guide contain information which, ‘if released, would compromise the ability of the intelligence community to carry out its mission because it would disclose how and when the FBI uses certain intelligence methods.’”  “‘The Guide directs FBI employees how to “put together” pieces of intelligence from various investigations to identify trends across the United States.’”  “These ‘[a]gency [declarations] enjoy “a presumption of good faith [that] cannot be rebutted by purely speculative claims” of agency malfeasance.’”  “The Guide itself supports the FBI’s explanation:  the document details the FBI’s intelligence apparatus, including the roles of various officials, production and dissemination of intelligence reports, case management, and staff assignment.”  “Pages withheld in full describe the duties of intelligence analysts; the FBI’s processes for threat, domain, and targeting analysis; and collection management.”  “The FBI’s explanation is sufficient to demonstrate that the Intelligence Program Policy Guide falls within the scope of § 3024(i)(1), and the agency therefore properly redacted information in the record to protect intelligence sources and methods from unauthorized disclosure.”
  
  “The FBI similarly carries its burden regarding [a] 4-page email, ‘which contain[s] briefing reports from multiple divisions regarding national security investigations, policies and practices, which, through discussion of information gathered, would reveal sources and techniques the FBI uses to gather information and intelligence in national security investigations.’”  “Releasing the unredacted email ‘would provide criminal elements, terrorists and foreign adversaries a preview of how the FBI will respond to similar investigative situations, allowing them to preemptively deploy countermeasures to disrupt FBI investigative efforts of their own, unrelated activities.’”
   
• Exemption 7, Threshold:  “The Court agrees that the FBI created the records here – an email tracking terrorism investigations and an Intelligence Program Policy Guide – for law enforcement purposes.”  “[Defendant’s] Declaration explains that the FBI created the guide as part of ‘the development of policy within the FBI’s Directorate of Intelligence.’”  “The FBI explains at length how the agency uses the Guide, including its ‘specific roadmaps’ for techniques ‘used to analyze information obtained from national security investigations.’”  “The Guide ‘is used by Intelligence Analysts and FBI Special Agents to draft Intelligence Products that identify specific trends in their areas of operation, and across the United States.’”  “Review of the document itself supports the notion that it was created for law enforcement purposes.”  “The record details ‘Roles and Responsibilities’ of FBI intelligence officials, as well as processes and procedures for intelligence collection, analysis, management, and recordkeeping.”  “The guide declares that its purpose ‘is to detail the roles and procedures in carrying out the [FBI’s] Intelligence Program.’”  “The FBI’s explanation of the document, as well as the document itself, confirm that it was created to further the FBI’s law enforcement mission.”  “The correspondence at issue also represents ‘an email among personnel in one of the FBI’s Counterterrorism Law Units tracking counterterrorism-related investigations.’”  “It is an ‘internal email between FBI employees . . . providing daily “close-out” updates on specific investigative matters, with specific analytical techniques discussed in three blocks on [one page] and two blocks on [another].’”  “Again, the record itself supports this description.”  “The email includes updates from various elements of the FBI Counterterrorism Division, including apparent references to individuals under investigation.”  “The agency’s explanation, along with the record itself, sufficiently demonstrates that the email was created for law enforcement purposes.”  “[Plaintiff] contends that the FBI must demonstrate that each record was created in relation to a specific investigation or enforcement proceeding, and that the agency has not done so here.”  “Yet under Exemption 7(E), ‘an agency may seek to block the disclosure of internal agency materials relating to guidelines, techniques, sources, and procedures for law enforcement investigations and prosecutions, even when the materials have not been compiled in the course of a specific investigation.’”
   
• Exemption 7(E); Litigation Considerations, Evidentiary Showing, Foreseeable Harm Showing:  The court holds that “[t]he FBI has thus satisfied the ‘relatively low bar for the agency to justify withholding’ of portions of the Guide and email under Exemption 7(E).”  First, the court finds that “[t]he Government has provided sufficient explanation of the techniques and procedures at stake, and the Court finds those explanations logical, plausible, and supported by the record.”  “The Intelligence Program Policy Guide indisputably contains law enforcement techniques and procedures.”  “The FBI explains that the guide provides ‘specific roadmaps’ and ‘details about how intelligence is to be used in investigations.’”  “Redacted portions of the Guide include, for instance, the specific duties of various FBI officials related to intelligence activities, . . . portions of the ‘intelligence cycle,’ . . . and ‘collection requirements,’ . . . .”  “The record includes descriptions of specific reports to be produced, . . . coordination, . . . assignment of personnel, . . . and file management . . . .”  “These topics plainly constitute the FBI’s law enforcement techniques and procedures.”  “The FBI similarly demonstrates that the redacted email provides information on law enforcement techniques and procedures.”  “As the agency explains, revealing ‘non-public investigative focuses of the FBI . . . would provide criminal elements, terrorists and foreign adversaries a preview of how the FBI will respond to similar investigative situations, allowing them to preemptively deploy countermeasures to disrupt FBI investigative efforts of their own, unrelated activities.’”  “‘[R]evealing the FBI’s points of focus in the particular investigations would necessarily reveal its techniques and procedures.’”
  
  Second, the court finds that “[t]he FBI’s explanations ‘demonstrate[ ] logically how the release of [the requested] information might create a risk of circumvention of the law.’”  “The FBI explains that the Intelligence Program Policy Guide ‘directs FBI employees how to “put together” pieces of intelligence from various investigations to identify trends across the United States.’”  “‘Disclosure of this information,’ the declaration continues, ‘would provide valuable insight into individuals of investigative interest and allow them to thwart these techniques, and would provide valuable insight into how the FBI uses intelligence.’”  “Revealing the unredacted Guide ‘would enable criminals and foreign adversaries targeted by these techniques to predict and circumvent their use by the FBI.’”  “As previously noted, the Guide instructs individual FBI officials on their roles in creation and analysis of intelligence, tradecraft standards, coordination across offices, assignment of personnel, and file management, among other topics.”  “These explanations sufficiently demonstrate reasonable expectation of a risk of circumvention . . . .”  “The FBI’s explanation for withholding the coordination email additionally passes muster.”  “The declaration notes that not only would release of the unredacted email ‘alert’ the ‘investigative targets . . . to the FBI’s interest in their activities,’ but it would also ‘provide criminal elements, terrorists and foreign adversaries a preview of how the FBI will respond to similar investigative situations, allowing them to preemptively deploy countermeasures to disrupt FBI investigative efforts of their own, unrelated activities.’”  “The email additionally contains discussion of ‘specific analytical techniques,’ . . . which raise similar concerns to the Guide.”
  
  Regarding foreseeable harm, the court holds that “[a]lthough evaluating the reasonable foreseeability of harm to an interest protected by an exemption ‘impose[s] an independent and meaningful burden on agencies,’ . . . meeting Exemption 7(E)’s requirement that release ‘might create a risk of circumvention of the law,’ . . . provides clues as to the likelihood of harm.”  “If release of the information ‘increase[s] the risks that a law will be violated or that past violators will escape legal consequences,’ . . . then it stands to reason that releasing the information would ‘actually impede’ the interests protected by Exemption 7(E).”  “Indeed, the Court looks to much of the same indicia in this analysis as it did when assessing the risk of circumvention.”  “The FBI has explained how releasing the Guide would empower ‘criminals and foreign adversaries targeted by these techniques to predict and circumvent their use by the FBI.’”  “Releasing the email would also ‘provide criminal elements, terrorists and foreign adversaries a preview of how the FBI will respond to similar investigative situations, allowing them to preemptively deploy countermeasures to disrupt FBI investigative efforts of their own, unrelated activities.’”  “The Court views the FBI’s justifications with due ‘defer[ence] to executive affidavits predicting harm to the national security.’”  “Based on these explanations and a review of the redacted documents, the Court finds that the FBI has provided ‘a focused and concrete demonstration of why disclosure of’ the Guide and email ‘will, in the specific context of the agency action at issue, actually impede the interests protected by a FOIA exemption.’”
   
• Exemption 7(D); Litigation Considerations, Evidentiary Showing, Foreseeable Harm Showing:  “The Court finds that the FBI’s explanation for withholding the name of its foreign source is both ‘logical’ and ‘plausible.’”  “The FBI has carried its burden here to demonstrate both that FOIA Exemption 7(D) applies and that disclosure would harm an interest protected by the exemption.”  “The FBI explains that ‘[i]n this case, the FBI has previously received an express request from a foreign government to withhold information pertaining to an ongoing investigation and possible pending charges in a case shared by the United States and that foreign law enforcement agency.’”  “The FBI added that ‘the withheld information would identify the country that has been assured its identity would be kept confidential’ and that ‘[d]isclosure could reveal both countries’ interest and position in the investigation.’”
  
  “The Court additionally finds that the FBI showed that disclosure would foreseeably harm an interest protected by Exemption 7(D).”  “The FBI explained that ‘[b]ecause of the sensitive nature of the information,’ along with ‘the FBI’s express assurance to keep this investigation confidential, this foreign government has a reasonable expectation that its identity and the information it provided to the FBI will remain confidential.’”  “Revealing the information ‘could be detrimental to the necessary cooperation of the foreign government agencies with the FBI.’”  “In addition, revealing the identity of the foreign agency source ‘would seriously impair the FBI’s effectiveness in assisting with or participating in future investigations with foreign government agencies.’”  “The agency’s explanation represents ‘a focused and concrete demonstration of why disclosure of’ the confidential foreign agency source ‘will . . . actually impede the interests protected by’ Exemption 7(D).”