Reporters Comm. for Freedom of the Press v. FBI, No. 15-1392, 2020 WL 1324397 (D.D.C. Mar. 20, 2020) (Leon, J.)

Reporters Comm. for Freedom of the Press v. FBI, No. 15-1392, 2020 WL 1324397 (D.D.C. Mar. 20, 2020) (Leon, J.)

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

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

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  "Because [the] Court has never held that any of the records at issue here were properly withheld, the law of the case doctrine has no application."  The court explains that "[a]lthough [plaintiff] has acknowledged the similarity between the FOIA requests and the rationales for the withholding of responsive records, . . . the cases defendants cite do not stand for the proposition that law of the case applies where the agency has withheld new documents based on the same or similar rationales that the Court has endorsed with respect to other documents."  Additionally, the court finds that "Defendants' collateral estoppel argument is no more meritorious."  "The key to collateral estoppel in the FOIA context is that the documents withheld, not the rationales for the withholdings, be the same."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that defendants properly withheld certain documents under Exemption 5.  "First, the FBI withheld an email chain providing recommended revisions to a draft letter to the editor of the New York Times."  "The FBI has sufficiently 'pinpoint[ed] an agency decision or policy to which the document[s] contributed,' . . . the decision of how to respond to public inquiries about the FBI's impersonation of news media."  "[Defendants] further explain[] that disclosing email discussions like this one would cause agency personnel to 'be less candid and more circumspect in expressing their thoughts, which would impede the fulsome discussion of issues necessary to reach a well-reasoned decision.'"  "This foreseeable harm is among those Exemption 5 seeks to prevent."  "Second, the FBI withheld drafts of the Office of the Inspector General's report regarding the FBI's impersonation of a journalist in a criminal investigation."  The court finds that "drafts 'are commonly found exempt under the deliberative process exemption' because they precede the final decision."  The court also agrees with defendants that "disclosure of these drafts would be harmful because they would 'reveal the thought and decision-making processes of the OIG and may not reflect the agency's final decisions.'"  "Third, the FBI withheld filled-in copies of blank, fillable forms that FBI personnel used to submit comments on the OIG draft report."  "Although these forms contain 'comments as to the factual accuracy' of the report, . . . sometimes even 'purely factual material may so expose the deliberative process' that it falls under Exemption 5."  "The Court is satisfied that any factual comments are so intrinsically linked to the FBI personnel's recommendations and opinions regarding the OIG draft report that disclosure could expose the deliberative process."  "As to what harm the agency foresees, [defendants] predict[] that 'FBI employees would hesitate to offer their candid and conscientious opinions to superiors or coworkers if they knew their opinions of the moment might be made a matter of public record at some future date.'"  "Fourth, the FBI withheld drafts of PowerPoint slides concerning undercover operations."  The court finds that "drafts 'are commonly found exempt under the deliberative process exemption' because they precede the final decision."  "Like drafts of the OIG report, the agency reasonably foresees harm, as disclosure would 'reveal the thought and decision-making processes of the OIG and may not reflect the agency's final decisions.'"  "Fifth, the FBI withheld an OIG memorandum discussing preliminary conclusions and recommendations regarding [an] investigation."  The court finds that "[t]hese communications played a part in the process by which OIG reached its final conclusions regarding the FBI’s impersonation of a journalist."  "[Defendants] explained that the withheld information referenced predecisional discussions and commentary that may not have been ultimately adopted by the agency and would reveal decisionmaking processes."  "This foreseeable harm is one of the harms the deliberative process privilege is designed to prevent."  "Sixth, the FBI withheld emails between FBI attorneys and other FBI personnel 'discussing matters pertaining to the application of an investigative technique,' implementation of [one policy] regarding certain undercover investigations, and a DOJ OIG report 'concerning information discussing the FBI's handling of [one] Investigation.'"  "According to [defendants], these emails 'precede[d] the FBI's Policy . . .' and 'reflect[ ] internal advice and recommendations' regarding policy changes in the approval process for undercover investigations involving impersonation of the news media."  "[Defendants] anticipate[] that disclosure of such communications would cause FBI employees and attorneys to 'hesitate to offer their candid and conscientious opinions to superiors or coworkers,' thereby 'degrad[ing] the quality of agency decisions by depriving the decision-makers of fully-explored options developed from robust debate.'"  "This harm is foreseeable and one that Exemption 5 was designed to protect against."  Finally, "[the court] would, however, join the chorus of members of this court in rejecting the Government's position, . . . that general assertions of harm to the deliberative process are sufficient to satisfy the 'heightened standard' of the FOIA Improvement Act's 'foreseeable harm' requirement . . . ."  "They are not."
   
• Exemptions 6 & 7(C):  First, the court "conclude[s] that names and identifying information of FBI personnel were properly withheld."  "Generally, 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 "plaintiffs have shown little public interest in disclosing the names or identifying information of FBI personnel."  "Knowing the specific names and contact information of personnel will do little, to say the least, to 'inform the public about the FBI's use of th[e] tactic' of impersonating members of the new media . . . ."  The court also finds that "[defendants'] justifications for withholding names and identifying information for FBI personnel, . . . readily satisfy the 'foreseeable harm' requirement."  Second, the court "conclude[s] that ["the name of a government employee outside the FBI" and "names and identifying information for local law enforcement personnel who aided the FBI in its investigation from two pages of records"] [are] properly withheld under Exemptions 6 and 7(C)."  The court finds that "publicity about the identities of these law enforcement personnel would subject them to 'unnecessary, unwarranted harassment' and make them targets for compromise."  The court finds that "[t]he same concerns about publicizing the names of FBI personnel apply to the names of non-FBI federal government and local law enforcement personnel."  "Plaintiffs have failed to show how the release of any of these names or identifying information will help the public determine whether FBI officials engaged in illegal or unconstitutional activity by impersonating journalists."  "Like information about FBI personnel, the justifications for withholding information about non-FBI and local law enforcement personnel, . . . readily satisfy the 'foreseeable harm' requirement."
   
• Exemption 7(E):  "[The] Court is thus satisfied that the withheld information falls properly under Exemption 7(E)."  The court relates that "[t]he FBI asserted Exemption 7(E) with respect to 1) operational directives; 2) undercover operations; 3) the identity and/or location of FBI or joint units, squads, or divisions; 4) internal FBI secure fax numbers and phone numbers; 5) sensitive investigative techniques and procedures; 6) targets of pen registers or trap and trace devices; 7) collection and analysis of information; and 8) sensitive file numbers and/or subfile names."  "Here, '[t]he information withheld under Exemption 7(E) is extremely descriptive, detailed and specific in nature' and 'comprises a fuller picture of the current uses of FBI techniques not known to the public.'"  "While any one piece of information might not compromise the FBI's techniques or procedures, 'pieces of information can be assembled – in mosaic fashion – to provide a framework to determine how, when, under which circumstances, certain te[ch]niques are employed.'"  "Disclosing this information to the public, including to criminals, would allow criminals to 'develop countermeasures to avoid detection' and 'to nullify the effectiveness of the techniques.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "Upon review of the FBI's declarations and Vaughn index, [the court] conclude[s] that the FBI has fulfilled its duty to reasonably segregate the records."  The court relates that "[defendants] declared that 'each responsive page was individually examined to identify non-exempt information that could be reasonably segregated from exempt information for release.'"  "[Defendants] further stated that '[e]very effort was made to provide Plaintiffs with all material in the public domain and with all reasonably segregable non-exempt information in the responsive records,' . . . and that 'the only information withheld by the FBI consists of information that would trigger reasonably foreseeable harm to one or more interests protected by the cited FOIA exemptions' . . . ."