Sebastian Brown, III v. FBI, No. 21-01639, 2023 WL 5333210 (D.D.C. Aug. 18, 2023) (Walton, J.)

Sebastian Brown, III v. FBI, No. 21-01639, 2023 WL 5333210 (D.D.C. Aug. 18, 2023) (Walton, J.)

Re:  Request for records concerning incident which occurred on December 2, 2015 at Inland Regional Center in San Bernardino, CA

Disposition:  Granting defendant’s motion for summary judgment

• Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  “[T]he Court finds that the FBI has met its burden in showing that it conducted an adequate search.”  The court relates that “[defendant] identifies and details the record systems and locations searched by the FBI, including why the relevant information would be in those locations and systems, the search terms used to conduct the search, and the scope of the search.”  “More specifically, he details the FBI’s Central Records System (‘CRS’) and the other internal electronic, integrated case management systems and their indices, most specifically, ‘Sentinel’ (and the now-integrated Automated Case Support – ‘ACS’) and explains why the FBI searched those databases.”  “The Court finds it reasonable that the FBI construed the plaintiff’s request for witness ‘accounts, narratives, and statements’ as witness ‘interviews,’ and that the FD-302s would be the source where responsive records would be found, given the purpose of the FD-302 and the comprehensive nature of the information contained therein.”  “All circumstances considered, (1) the FBI properly interpreted the scope of the plaintiff’s FOIA Request, and (2) its search parameters and methods were appropriate.”

• Litigation Considerations, Vaughn Index/Declaration:  “[T]he Court finds that the Vaughn Index, along with [defendant’s] Declaration, are sufficiently specific ‘to permit adequate adversary testing of the agency’s claimed right’ to the FBI’s reliance on the invoked exemptions.”  The court explains that “the located documents consisted of FD-302s, which are adequately described by the FBI.”  “The FBI’s Vaughn Index . . . and the comprehensive Declaration submitted by [defendant] considered together, sufficiently describe the records (or portions of records) withheld and their associated Bates numbers, as well as the exemptions justifying the associated information withheld.”

• Exemption 1:  “[T]he Court concludes that the FBI properly withheld [certain] information pursuant to Exemption 1.”  The court relates that “[t]he FBI withheld information pursuant to Exemption 1 under Executive Order 13526 (“EO 13526”) . . . .”  “Here, the FBI specifically relies on § 1.4(c), . . . which protects the category of information pertaining to ‘intelligence activities (including covert action), intelligence sources or methods, or cryptology’ if that information ‘could reasonably be expected’ to damage national security . . . .”  “[Defendant’s declarant] attests that he ‘personally and independently examined the information withheld pursuant to FOIA Exemption (b)(1) . . . [and] determined that the classified information continues to warrant classification at the “Secret” level . . . pursuant to E.O. 13526 § 1.4(c)[.]’”  “This he asserts is ‘because its release would reveal actual intelligence activities and methods used by the FBI against specific targets of foreign counterintelligence investigations or operations; identify a target of a foreign counterintelligence investigation; and/or disclose the intelligence gathering capabilities of the activities or methods directed at specific targets.’”  “[Defendant’s declarant] further maintains that disclosure of this ‘specific information regarding the intelligence activities[,]’ for which this Exemption was asserted, ‘could reasonably be expected to cause serious damage to the national security,’ because:  ‘(1) disclosure would reveal current targets of specific FBI national security investigations; and (2) disclosure would reveal the criteria used and priorities assigned to current intelligence or counterintelligence investigations.’”  “Indeed, the FBI asserts that ‘hostile entities could develop countermeasures which would . . . severely disrupt the FBI’s intelligence gathering capabilities . . . [and] efforts to detect and apprehend violators of the United States’ national security and criminal laws.’”  “The FBI represents that it protected three categories of information under this Exemption.”  “First, it withheld a classified intelligence file number ‘assigned to specific intelligence activities, including channelization and dissemination instructions.’”  “Additionally, the FBI withheld ‘classified information concerning the character and title of the case for a specific type of intelligence activity directed at a specific target of national security interest.’”  “Finally, the FBI withheld information that could identify the targets of an investigation.”  “Based upon consideration of all of this information, the Court finds that the FBI has offered sufficient factual detail for the Court to conclude that the categories of information withheld under Exemption 1 may be classified according to EO 13526, and that it was properly classified pursuant to that Order.”  “In fact, [defendant] actually describes the withheld information in more detail than required under Exemption 1.”

• Exemption 3:  “[T]he Court finds that [certain] information was properly withheld under Exemption 3.”  The court relates that “[h]ere, the FBI has exempted information pursuant to § 102A(i)(1) of the National Security Act of 1947 . . . .”  “The FBI has invoked Exemption 3, largely in conjunction with Exemption 1 (and with [Exemption 7(E)]), to protect information that, as already determined above, concerns intelligence activities and methods relating to the underlying investigation.”  “[Defendant’s] Declaration sufficiently explains that Exemption 3 applies, namely, because the information withheld from the FBI’s internal documents could reasonably be expected to lead to unauthorized disclosure of intelligence sources or methods.”

• Exemption 6; Exemption 7, Threshold; Exemption 7(C):  “[T]he Court concludes that the FBI's withholdings were proper under Exemption 7(C), and that it released all segregable information as it relates to this Exemption.”  First, “[b]ecause the Court concludes that the FBI’s withholding decisions [were] justified under the standard imposed under Exemption 7(C), it need not reach the question of whether the FBI’s withholdings are independently justified under Exemption 6.”  Second, the court holds that defendant has “satisfied its threshold burden.”  “The FBI is, by definition, a criminal investigatory and regulatory law enforcement agency within the Department of Justice.”  “Additionally, the plaintiff’s own purpose for filing this action is rooted in his express interest in criminal investigation records.”  Third, the court relates that “[h]ere, under Exemption 7(C), the FBI withheld names and other identifying information of: (1) FBI personnel and staff, (2) local law enforcement personnel and staff, (3) third parties who assisted the investigation by providing information, (4) third parties of investigative interest, (5) third parties ‘merely mentioned,’ (6) third party victims, and (7) non-FBI government personnel.”  The court finds that “[d]isclosure of the personal information of law enforcement personnel and staff (both federal and local), third parties who assisted the FBI in its investigation, third parties of investigative interest, third parties mentioned, and non-FBI federal government personnel . . . is ordinarily improper as disclosure could put all such individuals at risk of a myriad of harms.”  “In the instances where the FBI employed Exemption 7(C), it weighed the adverse effects of the release of the information to the individuals involved and the benefit to the public that disclosure could be expected to provide, concluding that the interest in privacy was greater.”  “And ‘the FBI did not withhold identifying information where it was able to determine that [an] individual was deceased or was a high-ranking governmental official whose activities may be of a greater public interest.’”  “These ‘representations suffice to establish “a reasonable likelihood” that the disclosure of such information would result in an unwarranted invasion of personal privacy.’”  “The FBI’s noted concerns significantly outweigh what little benefit the public may gain from knowing this information regarding its understanding of agency operations.”

• Exemption 7(D): “[T]he Court finds that the FBI’s reliance on Exemption 7(D) is proper and finds no defect in the FBI’s segregability analysis arising therefrom.”  “Here, the FBI withheld the names, identifying personal data, and the investigative information provided by sources who received implied assurances of confidentiality from the agency.”  “The FBI protected these sources, who were under the impression that their communications were confidential, due to the ‘critical information[’] [that they conveyed] regarding the San Bernardino shooting.”  “These individuals provided specific, detailed information that is singular in nature – i.e., only a few individuals would be privy to such information[,]’ including ‘locations in or near the building where the shooting occurred and their specific actions during the shooting.’”  “Furthermore, many of these sources ‘were coworkers of one of the investigative subjects and some sources interacted with this coworker the day of the shooting.’”  “[Defendant] also explains that the ‘highly violent nature of the mass shooting described in the records at issue attests to the fact that anyone cooperating with a law enforcement investigation concerning this terrorist attack would want and expect confidentiality[,]’ and ‘[a]lthough the suspected shooters are deceased, like-minded individuals or others sympathetic to the San Bernardino suspects could seek to deter a source's cooperation with law enforcement through reprisal[,]’ or to seek retribution against the source and their family, by engaging in acts of harassment, defamation, threats, or violent acts, including murder.”  “Finally, the FBI maintains that it ‘would forever eliminate that source as a future means of obtaining information[,]’ and exposure would create a ‘chilling effect on the activities and cooperation of other sources[,]’ thus undermining ‘the FBI’s most important means of collecting information and could thereby severely hamper law enforcement efforts to detect and apprehend individuals engaged in the violation of federal criminal laws.’”  “Given these detailed sworn representations, the Court is satisfied that the sources received implied confidentiality, and that Exemption 7(D) was properly invoked.”
   
• Exemption 7(E):  “The FBI withheld four categories of information under Exemption 7(E), . . . all of which the Court finds to be proper.”  “First, it withheld ‘sensitive file numbers[]’ . . . .”  “[Defendant] explains that releasing these confidential identifiers would reveal ‘the investigative interest or priority given to such matters.’”  “More specifically, he indicates that public knowledge of the classification numbers in the context of the Inland investigation would expose ‘key non-public information about the FBI’s investigative strategies and gathered evidence . . . [, and] information about non-public investigative techniques and procedures[,]’ thus providing ‘criminals and foreign adversaries the ability to discern the types of highly sensitive investigative strategies the FBI is pursuing whenever such file classification numbers are present within these and other sensitive FBI investigative records.’”  “He further represents that, in doing so, criminals or would-be criminals in cities without associated originating office codes could ‘assume the FBI failed to locate any evidence of their wrongdoing, emboldening them to continue their activities, undeterred.’”  “Given this detailed information, the FBI “demonstrate[s] logically how the release of the requested information might create a risk of circumvention of the law’ . . . .”  “Second, the FBI also protected an official ‘direct line’ ‘non-public telephone number of an FBI employee.’”  “[Defendant] attests that such release would put the agency at risk for an attack on its secure communications by way of ‘spoofing,’ and other acts of fraud, ‘to elicit sensitive information[.]’”  “Considering the nature of the documents in which the telephone number was contained, together with [defendant’s declarant’s] specific representations regarding this redaction, the Court is satisfied that the FBI has demonstrated that this phone number could be used in furtherance of potential fraudulent acts, and could lead to disruption of the FBI’s activities, or to the harassment and intimidation of its officials.”  “Third, the FBI withheld ‘database identifiers’ under Exemption 7(E).”  “These identifiers correspond to ‘the identity of and query data from a sensitive non-public investigative database used for official law enforcement purposes by the FBI[,]’ and [defendant] identifies multiple ways in which disclosure of such information would aid criminals in acquiring ‘insight into the available tools and resources the FBI uses to conduct criminal and national security investigations[,]’ and endanger the FBI’s investigative function and effectiveness by, for example, ‘revealing exactly where the FBI is storing and obtaining valuable investigative data[,]’ and rendering the FBI vulnerable to cyberattack.”  “Furthermore, release of the identifiers would ‘allow criminals who gain access to FBI systems insight into where they can go to discover what the FBI knows, how it gathered the information, and possible information regarding the FBI’s investigative strategies[,]’ and provide an ‘opportunity to corrupt or destroy information stored within these databases.’”  “The FBI has thus met its low burden to show that this information was properly redacted under Exemption 7(E).”  “Fourth, the FBI ‘protected the methods the FBI uses to collect and analyze information it obtains for investigative purposes.’”  “The Court agrees that the FBI properly withheld this information, as it relates to its investigative efforts of subjects of interest and their engagement in criminal activity.”  “The FBI represents that releasing such information would, inter alia, ‘enable criminals to educate themselves about the techniques employed for the collection and analysis of information and therefore allow these individuals to take countermeasures to circumvent the effectiveness of these techniques and to continue to violate the law and engage in intelligence, terrorist, and criminal activities.’”  “Thus, these withholdings were also proper under Exemption 7(E).”
   
• ​​​Litigation Considerations, In Camera Inspection:  The court relates that “[t]he plaintiff requests that the court conduct in camera review to determine the propriety of the redactions of the descriptions of the perpetrators, made under Exemption 6 and 7(C), and Exemption 7(D), specifically as it relates to their segregability.”  The court finds that “[t]he FBI has adequately described the segregability analysis it conducted, . . . in combination with its Vaughn Index, and has provided sufficient justification for its redactions and withholdings under the exemptions it invoked.”  “Moreover, there are no allegations or evidence in the record to suggest bad faith by the FBI.”  “Consequently, the request for in camera review is denied.”