Shapiro v. CIA, No. 14-00019, 2017 WL 1216505 (D.D.C. Mar. 31, 2017) (Cooper, J.)

Shapiro v. CIA, No. 14-00019, 2017 WL 1216505 (D.D.C. Mar. 31, 2017) (Cooper, J.)

Re: Request for records concerning Nelson Mandela

Disposition: Granting in part, reserving judgment in part and denying in part defendant's motion for summary judgment; reserving judgment and denying in part plaintiff's cross-motion for summary judgment

• Exemption 1: "The Court is . . . satisfied with the FBI's 'plausible assertion that information [was] properly classified [.]'" The court relates that "[defendant's declarant] avows personal familiarity with the records at issue, and, in his role as an original classification authority, was responsible for determining 'that the information withheld pursuant to Exemption [1] is under the control of the United States Government, is classified and requires a classification marking at the "Secret" level since the unauthorized disclosure of the information reasonably could be expected to cause serious damage to national security.'" "Additionally, he confirms that the 'procedural requirements of E.O. 13526 [were] followed' in classifying the documents." The court also notes that, "[o]n the basis of [an] additional review, the agency determined that declassification was warranted for four pages, which it subsequently released, and that the remaining pages still qualified for 'Secret'-level classification."
   
• Exemption 3: "Having now carefully examined the FBI’s submissions (both public and in camera), the Court is assured that the withheld information falls well within E.O. 13,526 and the National Security Act’s scope of protection, and was, therefore, properly excluded from the released records."
   
• Exemption 5, Deliberative Process Privilege: "Based on the FBI's rather vague explanations, the Court cannot determine if Exemption 5 is justified and therefore will reserve judgment on this issue and order the agency to submit the Operational Plan for in camera review." The court finds that "[i]t is not apparent, based on the FBI's declaration alone, how a security plan for attending a funeral relates to any 'legal or policy issues.'" "Logistical details around funeral arrangements are far from the 'conclusions, recommendations, or opinions' that Congress intended to protect under the exemption."
   
• Exemption 7, Threshold: "[T]he Court finds that the FBI has sufficiently established that the withheld documents were compiled for law enforcement purposes and are based on legitimate concerns regarding potential violations of the law or threats to national security." The court relates that defendant stated that "the records were compiled during 'multiple FBI criminal investigations of threats made against Mandela' and recited that the remaining records were created in 'furtherance of FBI's law enforcement and national security missions.'" "[Plaintiff] objects to the latter justification as too generic to carry the FBI's burden of proving that each withheld document related to a law enforcement purpose." "The FBI, in response, points to its in camera, ex parte declarations to provide the missing details, which it believes are too sensitive to reveal on the public record."
   
• Exemption 7(A): "The Court . . . finds that '[t]he [FBI's] declarations, viewed in light of the appropriate deference to the executive on issues of national security,' satisfy its burden in justifying withholdings under Exemption 7(A)." The court finds that "the FBI has offered sufficient explanations: It stated that disclosing the redacted material in Mandela–1160 could 'expose potential leads and/or suspects the FBI identified' in relation to an on-going domestic terrorism investigation and releasing the concealed information . . . could harm the 'on-going investigation by impeding the FBI's efforts to locate the fugitive.'" "The agency also clearly indicated that it withheld information related to a fugitive, not just the individual's fugitive status which might be publicly known, and [plaintiff] has not offered any evidence to discredit these explanations."
   
• Exemption 7(C): "The FBI has . . . failed to meet its burden to demonstrate why Exemption 7(C) applies to the specific redaction challenged by [plaintiff], and to other redactions related to individuals who have been convicted of offenses." The court explains that "[i]t might be that a convicted individual's privacy interest would still win out, but the FBI needs to take the public nature of his or her conviction into account when conducting the balancing, which it has failed to establish that it did here." However, "the Court finds that the FBI has met 'its obligation to take basic steps to investigate information that could affect the privacy interests at stake[.]'" The court credits the "FBI['s] respon[se] that it uses two methods to determine an individual's 'life status': 'It checks each name against a current list of deceased individuals from various walks of life (i.e. former special agents, public figures, politicians, notorious individuals) . . . [and it] uses information within the file itself to determine if an individual is alive or deceased.'"
   
• Exemption 7(D): The court first finds that "confidential-source symbol numbers, identifiers assigned to sources operating under an express grant of confidentiality[,]" as well as "information provided by source-symbol-numbered informants" was appropriately withheld. The court finds that "the FBI has established that these sources are confidential: permanent source symbols are assigned 'in sequential order to confidential informants who report information to the FBI on a regular basis pursuant to an express assurance of confidentiality.'" Second, the court finds that "information supplied by foreign government agencies operating under an express assurance of confidentiality; and . . . names, identifying data, and information provided by non-source-symbol-numbered informants operating under an express assurance of confidentiality[]" were appropriately withheld. The court finds that "[w]hile the relationship might now be declassified, the fact remains that the foreign government agency was given an express assurance of confidentiality when the information was exchanged." Additionally, "[t]he FBI has likewise established that it provided express assurances of confidentiality to other third-party sources, whose information it redacted from responsive records." Third, the court finds that the withholding of "names, identifying data, and information provided by sources operating under an implied assurance of confidentiality" was appropriate. The court explains that "[i[t would be reasonable for the FBI to infer that this type of information and analysis of the apartheid government's plans and intentions came from a source with a high-level political connection or 'ready access' to areas of national security interest." "In addition, such a source might bear significant risks if their identity was revealed, including 'disastrous effect on [the source's] career,' risk of retaliation, and threats to the source’s family." "All of these inferences would support a finding that the . . . source would only provide information if the source believed his or her identity would stay confidential."
   
• Exemption 7(E): First, regarding the withholding of "'security details still in use today or similar in nature to methods used today for protection[,]'" the court finds that "[r]elease of such details could therefore 'potentially risk the lives of individuals providing protection as well as those seeking protection.'" Second, regarding the "withholdings of information related to the subjects and tools of its investigations[,]" the court finds that "[e]ven crediting his unfounded assertion that all these files are 'long-closed,' [plaintiff] has failed to offer any evidence that this information would not remain relevant to deciphering the patterns of the FBI's investigations and its current strengths and weaknesses." The court credits defendant's explanation that "disclosing the information 'would enable subjects of FBI investigations to circumvent similar currently used techniques.'" Third, regarding the "withhold[ing] the names of its investigative databases and investigative details," "the Court will again defer to the FBI's reasoned judgment in areas of national security and counterterrorism, and concludes that the FBI has passed the 'low bar' imposed by 7(E)." The court relates that defendant argues "that the name of the database alone is not the issue, but rather the 'nexus of publicly available information with specific records[]'" and that "[u]nveiling this nexus 'would reveal what specific types of information are considered relevant to these databases as well as the methods for input of data [which] could enable criminals to employ countermeasures to avoid detection.'" However, "the Court cannot discern on the present record if [certain information] relate[s] to active, recently closed, or decades-old investigations." "It will therefore deny both motions for summary judgment as to these three redacted pages, and order the FBI to either release the records without redactions or renew its summary judgment motion along with a supplemental declaration presenting 'additional evidence and explanation regarding the specific risk posed by disclosure of [these] file numbers.'"
   
• Procedural Requirements, Searching for Responsive Records: "[T]he Court concludes that the FBI's practice is consistent with the D.C. Circuit's guidance." "The FBI's search returned responsive material and information, some of which was found in document compilations covering multiple, unrelated topics." "It located the responsive pages related to [plaintiff's] FOIA request, and included additional pages, as necessary, to provide context." "This set of documents (i.e. pages) became the responsive record, which the FBI then reviewed for statutory exemptions." "The FBI easily clears AILA's minimum hurdle because it did not withhold single sentences, or even paragraphs, as non-responsive from within the results of its search." "But rather, relying on its own knowledge of its documents and DOJ OIP guidance, it determined that 'it was appropriate to divide a document [covering multiple, unrelated topics] into discrete "records."'" "What is more, the FBI's practice is also in keeping with practical considerations." "If an agency was forced to turn over a full manual or entire report every time a single page contained a responsive term, the amount of time, labor, and cost that would be required to review this purportedly 'responsive' material for exemptions would be exponential, hindering the agency’s ability to process multiple requests efficiently or allocate its resources effectively." However, the court also finds that "[w]ithout further details in the record about how the FBI determined which pages within these documents were responsive, the Court is unable to resolve this issue."