Reps. Comm. for Freedom of the Press v. FBI, No. 17-1701, 2022 WL 13840088 (D.D.C. Oct. 21, 2022) (Contreras, J.)

Reps. Comm. for Freedom of the Press v. FBI, No. 17-1701, 2022 WL 13840088 (D.D.C. Oct. 21, 2022) (Contreras, J.)

Re:  Request for records concerning FBI’s impersonation of documentary filmmakers and film crews

Disposition:  Granting in part and denying in part defendant’s motion for partial summary judgment; granting in part and denying in part plaintiff’s cross-motion for partial summary judgment

• Exemption 6; Exemption 7(C); Waiver and Discretionary Disclosure, Waiver:  The court relates that “[t]he FBI relied on Exemptions 6 and 7(C) to withhold information about the identities of FBI special agents and professional staff, including pseudonyms . . . .”  The court finds that “there is no dispute that all of the requested information serves law enforcement purposes.”  “Therefore, the Court will examine the FBI’s withholding under Exemption 7(C).”  The court finds that “Exemption 7(C) does not justify the FBI’s withholding of pseudonyms.”  “[Plaintiff] argues that because the ‘very purpose’ of a pseudonym ‘is to shield an individual’s true identity,’ there is no privacy interest in a pseudonym.”  “The FBI does not respond to this point, but instead argues that there is ‘no evidence that releasing any . . . pseudonyms would shed light on the government’s activities.’”  “But that puts the cart before the horse, because as a preliminary matter, the FBI has the ‘burden’ to show that the ‘privacy concerns addressed by Exemption 7(C) are present.’”  “This it has not done.”  “[Plaintiff’s] challenge regarding the four FBI special agents, however, misses the mark.”  “[T]hese individuals’ names and identifying information ‘are presumptively exempt from disclosure.’”  “[Plaintiff] argues that their names cannot be withheld because these agents have already been publicly associated with the Bundy investigation.”  “News reports associating an individual with an investigation do not waive an individual’s privacy interest in that investigation.”  “These testimonies, however, only reveal the fact that these special agents were involved in some capacity in the Bundy investigation.”  “[Plaintiff] has made no effort to show that the special agents have publicly disclosed their involvement in the Bundy investigation in connection with the filmmaker impersonation tactic.”  “For that reason, the special agents have not waived their privacy rights to their identifying information in the . . . records [at issue].”
  
  “Having established that Exemption 7(C) applies, the FBI has also shown that it ‘reasonably foresees disclosure would harm an interest protected by [the] exemption.’”  “The FBI has stated that disclosure of agent names could lead to harassment of agents and their families and also impair their duties.”  “The FBI observed that in retaliation for the Bundy investigation, militia groups have already targeted several agents and their families by posting their personal information and home addresses on social media.”  “Disclosure of the information that [plaintiff] seeks here would likewise jeopardize these agents’ privacy.”  “If someone ‘carry[ing] a grudge’ knew that an agent performed a particular role in the Bundy investigation, he could ‘seek revenge.’”  “Therefore, the FBI properly invoked Exemption 7(C) to withhold the information in question.”
   
• Litigation Considerations:  The court holds that “[t]o the extent that [plaintiff] is alleging that the agency discharged its FOIA duties in bad faith, it has not produced any evidence that would lead the Court to believe that the agency intentionally tried to withhold documents it knew must be disclosed.”  “If anything, the FBI’s revised release with respect to previously withheld documents under Exemption 7(E) shows that the agency was attentive to the arguments raised in [plaintiff’s] cross-motion and made a good-faith effort to revise its production accordingly.”  “The Court declines to penalize the agency for taking additional steps to comply with its FOIA obligations and release more information in response to the requester’s briefing.”
   
• Exemption 7(E):  The court observes that “the language of this requirement – ‘could reasonably be expected to risk circumvention of the law’ – supplants the FOIA Improvement Act’s general requirement that an agency must disclose records unless it is reasonably foreseeable that disclosure would harm the interest the claimed exemption protects.”  First, the court relates that “[t]he FBI invokes Exemption 7(E) to ‘protect[ ] methods and techniques involving the location and identity of certain specialized FBI units or joint units, squads and divisions that were involved in the investigations.’”  “The FBI claims that besides the involvement of the Las Vegas Field Office, ‘it is not publicly known if other [FBI Headquarters] divisions, squads, or joint task forces assisted.’”  “The FBI’s declarant explains how disclosure could reveal FBI techniques regarding how it allocated resources and manpower in this investigation and the reach of the investigation’s geographic scope.”  The court finds that “[d]isclosure of this information could risk circumvention of law, which ‘requires only that an agency “demonstrate logically how the release of the requested information might create a risk of circumvention of the law.”’”  “Under the FBI’s mosaic theory, which posits that seemingly innocuous information ‘when taken together’ in the aggregate could reveal protected information, a potential lawbreaker could piece together this information to draw conclusions about the FBI's investigatory methods.”  “The Court finds the FBI’s explanation logical and plausible.”  Second, the court finds that “[t]he FBI also invokes Exemption 7(E) to protect information regarding the focus of specific investigations.”  “The Court interprets this to mean specific investigations within the larger context of the Bundy investigation, which concerns not just Cliven Bundy but other related subjects.”  The court finds that “revealing the FBI’s points of focus in the particular investigations would necessarily reveal its techniques and procedures.”  “The FBI’s declarant states that ‘[r]eleasing the focus of specific FBI investigations would enable criminals to predict the FBI’s investigative strategies, structure their activities in a manner that thwarts the FBI's investigative efforts, and continue to circumvent the law.’”  “The Court finds this explanation logical and plausible.”  Third, the court relates that “[t]he FBI invokes Exemption 7(E) to withhold details regarding the ‘length, breadth, and methodology’ of undercover operations.”  “The FBI’s declarant acknowledged that while some information exists in the public domain regarding the Bundy investigation, the FBI only seeks to protect ‘non-public details’ of its investigation, such as ‘the extent operatives can infiltrate organizations,’ ‘covert communication techniques,’ and ‘approval requirements for different facets of undercover operations.’”  The court finds that “[i]t is true that as a result of media attention and the criminal trials, the public is aware of the FBI's filmmaker impersonation technique and knows at least some details about the FBI’s operations.”  “That certain public information exists about the Bundy investigation, however, does not undermine the FBI’s withholding of non-public information about its undercover operations concerning the Bundy investigation.”  Finally, the court relates that “[t]he last category the FBI seeks to protect under Exemption 7(E) is monetary payments that were either requested or paid by the FBI in the course of the Bundy investigation.”  “Although the public may know that the FBI spent a considerable amount in this investigation, it does not know precisely how much the FBI spent, much less how the FBI spent it.”  “Thus, this information is also protected under Exemption 7(E).”
   
• Exemption 7(E) & Waiver and Discretionary Disclosure, Waiver:  The court holds that “[t]he FBI . . . may not withhold information from its Longbow Productions webpage[, a webpage relating to defendant’s undercover operation].”  “With respect to this webpage, the FBI contends that ‘[r]evealing undercover operational information that the FBI has not publicly acknowledged would place the use of such techniques at risk for circumvention of the law.’”  “So the issue turns on whether the Longbow Productions webpage is publicly available.”  “Here, [plaintiff] attached to its briefing screenshots of the FBI’s Longbow Productions webpage which it accessed through a site called the Internet Archive Way Back Machine.”  “The FBI does not dispute the authenticity of this information.”  “Instead, it argues that this information does not exist in the public domain because the Longbow Productions webpage, which the FBI has since taken down, is not ‘easily accessible’ and therefore not ‘actually in the public domain.’”  “But [the court finds that] the FBI’s cramped notion of the public domain makes no sense, and it cannot cite a single case for the proposition that only a website’s original URL can be in the public domain for FOIA purposes.”  “[Plaintiff’s] counsel has identified the Longbow Productions webpage’s archived URL link, which the Court, and any member of the public, can readily access.”  “Thus, this information has been ‘disclosed and preserved in a permanent public record.’”  “Therefore, the FBI cannot withhold information under Exemption 7(E) that duplicates information from this webpage.”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  The court relates that “the FBI’s declarant represented that the FBI performed a segregability analysis for all . . . pages at issue, which consisted of pages the FBI released in part and pages it withheld in full.”  “[Defendant] further stated that the FBI withheld information that was ‘so intertwined with exempt material’ that it could not be further segregated.”  “[Plaintiff’s] briefing did not challenge the FBI’s segregability analysis with respect to any of the . . . pages.”  “Thus, the Court is satisfied that the FBI has adequately segregated non-exempt information.”