Ramaci v. FBI, No. 17-10084, 2021 WL 4896277 (S.D.N.Y. Oct. 20, 2021) (Abrams, J.)

Ramaci v. FBI, No. 17-10084, 2021 WL 4896277 (S.D.N.Y. Oct. 20, 2021) (Abrams, J.)

Re:  Request for records concerning August 2, 2005 kidnapping and murder of plaintiff's husband in Basra, Iraq

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

• Exemption 7(D):  The court relates that "[t]he FBI contends that 'an implied assurance of confidentiality should be inferred' for its sources from the . . . investigation 'in light of the violent nature of the crime and the risk of retaliation or reprisal for those who assisted the FBI, as well as the fact that the specific information withheld from certain records would effectively reveal the identities of the sources to those familiar with the events addressed in those records.'"  "Its ex parte submissions further detail the context in which its sources provided information to the FBI."  "[Plaintiff] specifically raises challenges to the FBI's withholding of records containing information that she assumes was provided by two categories of sources:  (1) [plaintiff's husband's] Iraqi interpreter, and (2) other Iraqis who witnessed the crime."
  
  Regarding the first category, the court finds that "it is plain that, assuming Plaintiff is correct that [plaintiff's husband's Iraqi interpreter ("the source")] provided information to the FBI, she would meet the general criteria for finding that she was an impliedly confidential source under the 'two key factors' . . . :  'the nature of the crime that was investigated and the source's relation to it.'"  "Plaintiff does not dispute that the nature of the crime – a kidnapping and murder perpetrated by a terrorist group – weighs in favor of finding an implied assurance of confidentiality."  Additionally, the court finds that "[the source's] 'relation to the crime' also supports a finding of implied confidentiality."  "Here, the FBI persuasively notes, as a victim of the crime under investigation, [the source] 'would have been in a unique position to provide assistance to investigators regarding details of the attack on her and [plaintiff's husband],' which would lead to 'a substantial risk that disclosure of any information she may have provided to the FBI would be easily traceable to her.'"  "Exemption 7(D) was intended to protect individuals who provide information under such circumstances."  Additionally, the court finds that "[t]hat [the source] spoke publicly about the kidnapping and murder – using an alias – does not mean that an implied assurance of confidentiality could not attach to any conversations she may have had with the FBI."  "As an initial matter, a review of the materials attached to [defendant's] Declaration demonstrates that, while she discussed her experience in various public settings, there is little indication in these public materials that [the source] ever stated that she was cooperating with the FBI (or any other law enforcement agency) or that she was providing any confidential non-public information to such agencies."  Also, the court finds that "[b]ased on the nature of the crimes here, [the source's] relation to the crimes, and the risks that [the source] might face if her identity and any information she may have provided were disclosed, the Court finds that any information [the source] may have provided to the FBI would have been given with an expectation of confidentiality."  The court relates that "[a]lternatively, Plaintiff argues that even if [the source] did provide statements under an implied assurance of confidentiality, she nonetheless waived that confidentiality by making public statements about the incident."  "The Court agrees with the FBI that al-Khal has not waived any implied assurances of confidentiality, finding that her subtle and passing references to having spoken with law enforcement (in conversations where she was using an alias) do not amount to a total disregard for any and all confidentiality she may have expected from those purported conversations."
  
  The court relates that "Plaintiff also argues that statements provided by other Iraqi sources have been improperly withheld under Exemption 7(D) because such individuals likely 'witnessed the kidnapping during daylight in a crowded marketplace in a city of approximately 1.6 million people' and therefore 'would likely not worry that the perpetrators could ever work out their identities from their (anonymized) statements.'"  "Put another way, although Plaintiff does not dispute the violent nature of the crime or the general threat to cooperators with the United States Government in Iraq circa 2005, Plaintiff contends that mere bystanders to a crime do not possess the necessary closeness to the criminal activity to benefit from an implied assurance of confidentiality."  "Because Plaintiff assumes that 'unidentifiable bystanders' are the types of sources at issue here, Plaintiff infers that the FBI is performing a blanket withholding of information based solely on the violent nature of the crime, and argues that this is impermissible."  The court finds that "Plaintiff's arguments are thoughtful and well-taken, and her assumptions about the nature of the witnesses are understandable given the lack of law enforcement information available to her."  "[Defendant's] Declaration did not provide particularly extensive details regarding the nature of the witnesses or their relations to the crime – only that the FBI 'interview[ed] multiple Iraqi citizens who provided information that was singular in nature, and if released, could reveal their identities,' . . . and that 'the sources, based on their proximity to the crime, were privy to specific and singular information about the potential criminal/terrorist activities under investigation' . . . ."  "Having conducted [an] in camera review, the Court is now confident that the FBI's inferences of implied confidentiality, and therefore its withholdings pursuant to Exemption 7(D), were proper, based not only on the violent nature of the crime and the threats faced by Iraqis willing to assist U.S. personnel, . . . but also because of the relation of each of the FBI's sources to the crime."  "The Government's ex parte submission provides substantial support for [defendant's] Declaration's statement that each of the individual sources in this case 'provided information that was singular in nature.'"  "The FBI's witnesses were not merely unidentifiable bystanders to a daytime kidnap[p]ing in a crowded marketplace – each of the sources whose information was withheld pursuant to Exemption 7(D) had a particular vantage point on the circumstances and provided information that the FBI reasonably concluded could, if disclosed, be traced back to the sources, thus revealing their cooperation and implicating their safety."  "The witnesses' unique perspectives were informed by either their position in a relevant community, their specific knowledge about the victims and/or possible perpetrators of the crime, or their interactions with the victims and/or possible perpetrators of the crime."  "These specific connections could allow the sources' identities to be inferred from the information they provided, thus exposing them to threats of retaliation."
   
• Litigation Considerations; Exemption 5; Exemption 6; Exemption 7(C); Exemption 7(E):  The court relates that "[t]he FBI also argues that it is entitled to summary judgment with respect to the withholdings and redactions it has made pursuant to Exemptions 5, 6, 7(C), and 7(E)."  "Plaintiff does not appear to challenge the FBI's withholdings and redactions under these exemptions."  "Upon the Court's review of [defendant's] Declaration and the FBI's Vaughn Index . . . it finds that the FBI's submissions are sufficient and summary judgment is also appropriate as to its withholdings under Exemptions 5, 6, 7(C), and 7(E)."
   
• ​​​​​​​Litigation Considerations, "Reasonably Segregable" Requirements:  The court notes that "[a]lthough Plaintiff argues on reply that the FBI failed to properly segregate information . . . she did not raise any issues regarding segregability in her cross-motion – despite the fact that the FBI had done so, explicitly arguing that it had produced all reasonably segregable portions of the responsive records . . . ."  The court finds that, "[i]n any event, the FBI has sufficiently demonstrated that the records in question do not contain reasonably segregable non-exempt material."  Of note, the court finds that "'[a]ny further segregation' of the 'intertwined material' contained in these 428 pages would produce only 'disjointed words, phrases, or sentences that taken separately or together, would have minimal or no informational content.'"