Reporters Comm. for Freedom of the Press v. FBI, No. 15-1392, 2017 WL 729126 (D.D.C. Feb. 22, 2017) (Leon, J.)

Reporters Comm. for Freedom of the Press v. FBI, No. 15-1392, 2017 WL 729126 (D.D.C. Feb. 22, 2017) (Leon, J.)

Re: Request for records concerning alleged practice of impersonating members of news media

Disposition: Granting defendants' motion for summary judgment; denying plaintiffs' motion for summary judgment; denying plaintiffs' motion for in camera review

• Litigation Considerations, Adequacy of Search: The court holds that "the evidence shows that the FBI conducted a good faith, reasonable search of the systems of records likely to possess records responsive to plaintiffs' requests." The court finds that "[t]he agency attests that it searched the record repositories appropriate for each group in a manner designed to uncover responsive records." The court relates that "[p]laintiffs object to the structure of the FBI's search, [focusing on] the agency's decision to divide their FOIA requests into two groups[,]" but finds that "[a]lthough plaintiffs would have structured the search differently, an agency 'need not knock down every search design advanced by every requester' in order to prevail at summary judgment." Responding to plaintiffs' arguments concerning which records systems were searched, the court finds that "'[t]he FBI was not required to search every record system; it was only required to conduct a reasonable search of those systems of records likely to possess the requested information.'" Regarding plaintiff’s criticism of "the search terms used by the FBI[,]" the court finds that "a search is not rendered inadequate by the suggestion of 'additional search terms' that, in the requester's view, the agency 'should have used.'" Finally, responding to plaintiff's argument, the court "reviewed the information identified by plaintiffs for 'positive indications of overlooked materials[,]'" but found that "[n]othing in these materials persuades [the court] that plaintiffs' arguments are anything more than '[m]ere speculation that as yet uncovered documents may exist.'"
   
• Exemption 1: The court "defer[s] to the FBI's predictive judgment regarding this classified material and will not review it in camera or order it disclosed." The court notes that "the FBI provides a sworn affidavit from an original classification authority . . . who reviewed all of the withheld information and affirms that it is properly classified pursuant to Executive Order 13526[]" and "also affirms that the withheld material contains information pertaining to intelligence sources and methods, and that release of this information reasonably could be expected to cause serious damage to the national security of the United States, and therefore should be and is classified at the 'Secret' level."
   
• Exemption 3: "[The court is] satisfied that the Bureau properly withheld portions of the responsive records under the National Security Act of 1947." The court relates that "[defendants'] affidavit explains that 'the FBI's intelligence sources and methods would be revealed if any of the withheld information is disclosed to Plaintiffs.'"
   
• Exemption 5, Deliberative Process Privilege & Attorney-Client Privilege: The court holds that "both exemptions apply." The court relates that some of the withheld information "show[s] that agency personnel were discussing changes to, and legal review of, an application for a search warrant before submitting it to a court." "Such information is both pre-decisional and privileged." Also, other "redacted material 'concerns opinions and recommendation[s] of an advisory nature about FBI authority and policy evaluated in light of [a certain] investigation, but not adopted by the agency as final policy.'" The court finds that "this information, too, was properly withheld."
   
• Exemptions 6 & 7(C): The court holds that "[t]he Bureau properly withheld [names and identifying information of federal and state law enforcement and support personnel.]" The court finds that "[t]he FBI starts from a strong position[]" because "[c]ourts in our Circuit have repeatedly held that law enforcement and support personnel have an 'extremely strong privacy interest' in not having their identifying information disclosed in connection with any particular investigative matter." The court finds that "[t]he FBI has invoked that weighty interest here . . . and plaintiffs offer little to counterbalance it[]" because they "do not explain what, if anything, the disclosure of information identifying individual government employees would add to informing the public." "'In the absence of a legitimate public interest, the private interest in avoiding harassment or violence tilts the scales.'"
   
• Exemption 7(E): "Although plaintiffs demand that the Bureau describe in greater detail the nature of the records it withheld, [the court] find[s] that the agency has justified its withholdings because it has 'logically explain[ed]' how the information could help criminals circumvent the law." The court relates that "the FBI invokes Exemption 7(E) with respect to six kinds of information: (1) operational directives; (2) records pertaining to a specific undercover operation; (3) internal FBI secure fax and phone numbers; (4) details concerning deployments of [Computer Internet Protocol Address Verifiers]; (5) details about certain targets of pen registers and trap and trace devices; and (6) collection and analysis methods."
   
• Litigation Considerations, "Reasonably Segregable" Requirements: "Upon review of the FBI's declarations and Vaughn index, [the court] conclude[s] that the Bureau has fulfilled its duty to be 'as specific as possible without actually disclosing information that deserves protection.'" The court relates that "[t]he agency affirms that it 'individually examined' every page 'line by line'" and "[m]aterial that was withheld was either exempt from disclosure or was so intertwined with protected material that segregation was not possible without foreseeable harm."