Skip to main content

Shapiro v. DOJ, No. 12-313, 2020 WL 3615511 (D.D.C. July 2, 2020) (Howell, J.)


Shapiro v. DOJ, No. 12-313, 2020 WL 3615511 (D.D.C. July 2, 2020) (Howell, J.)

Re:  Requests for records concerning "'Green Scare,'" which plaintiff defines as "'the ongoing disproportionate, heavy-handed government crackdown on the animal rights and environmental movements'"

Disposition:  Denying plaintiff's motion for discovery; denying plaintiff's motion for summary judgment; granting in part and denying in part defendant's motion for summary judgment

  • Litigation Considerations, Discovery:  The court holds that "[plaintiff] has . . . failed to show why discovery, eschewed in FOIA litigation absent a showing of agency bad faith, is 'necessary' in this case."  The court finds that "Plaintiff's presentation of certain documents that he claims suggest the FBI submitted its declarations in bad faith is simply not persuasive."  "Some of those documents long pre-date the searches in this case, some relate to searches in other cases, some do not relate to FOIA searches at all, and those that do relate to the FOIA requests at issue in this case are at least consistent with, and even helpful to, the FBI's description of the . . . searches it conducted."  The court finds that "[o]ver the eight years this case has been pending, some change in records management and search processes on the part of the FBI is hardly surprising."  "Plaintiff's attempt to use that natural development of agency procedures as evidence of agency bad faith is insufficient."
  • Litigation Considerations, Adequacy of Search:  Regarding the FBI, the court holds that "[i]t has met its burden and DOJ is entitled to summary judgment."  The court finds that "plaintiff's cherry-picked phrases from documents obtained outside this litigation, many of which relate to searches for records responsive to requests not at issue in this case, do not call the adequacy of the FBI's search into question."  "Even if they did, those doubts are more than allayed by the FBI's most recent declaration."  The court finds that "a focus on the FBI's submissions in this case demonstrates that the agency has carried its burden."  The court relates that defendant "provide[s] a general description of how the FBI stores and searches for records, . . . as updated throughout this litigation . . . ."  "Detail about how the FBI searched for records related to the plaintiff's requests in this particular case are also provided."  "To complete those searches the FBI appropriately derived search terms from the requests at issue in this case."  "Additional information, if available, 'including but not limited to dates of birth, places of birth, and/or social security numbers,' would be used to ensure the search was accurate."  "The FBI has thus submitted 'a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.'"

    Similarly, the court holds that "ATF has submitted 'a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.'"  The court relates that "ATF's involvement in this case was, for the most part, processing records forwarded to it by the FBI."  "Plaintiff filed only a single request with ATF directly . . . and he raises no issue with the search performed in response to that request."
  • Litigation Considerations:  Regarding the sampling done in this case, the court finds that "the FBI has done itself no favors by giving the selected samples exactly the kind of special treatment that courts have] warn[ed] against."  "As evident from the FBI's declaration, the Bureau re-reviewed the samples selected by the parties and altered its withholdings."  "That re-review resulted in, by the Court's count, release of previously withheld information on 94 individual pages of the sample and may have entailed removal of more than one redaction on each of those pages."  "The FBI's re-review also resulted in the application of new or different FOIA exemptions to information on 95 sample pages."  "The re-review thus casts doubt on the utility of the sample in this case."  "Moreover, in addition to those changes, the FBI decided, while briefing in this action was ongoing, no longer to defend the application of certain exemptions and released still more material previously withheld."
    Separately, the court holds that "DOJ wrongly asserts that disputes over sample documents withheld at the time the sample was chosen but released to plaintiff as briefing was ongoing, are now 'moot.'"  "The question of whether now-disclosed sample documents must be ordered released is indeed moot."  "Yet, for all the reasons described above, the agency must justify its initial withholdings and is not relieved of that burden by subsequent release of documents."
    Overall, the court finds that "with respect to certain exemptions challenged by plaintiff, the record is insufficient to determine whether the agency’s initial justifications were lawful, resulting in an inability on this record to conclude whether the initial withholdings should be counted as an error in calculating the error rate."
    However, regarding plaintiff's argument, the court finds that "'court review' of agency withholdings 'properly focuses on the time the determination to withhold is made.'"  "As explained in more detail where relevant, DOJ will not be required 'to follow an endlessly moving target,' . . . and this Court's review is constrained to determining the propriety of the agency's withholdings at the time they were made."
    Regarding what constitutes an error, the court holds that "[o]nly when all or part of a document has been 'improperly withheld' will agency error be found."  "If, for example, a name has been redacted under both Exemption 3 and Exemption 7(C), a determination that only Exemption 3 was applied in error does not change the fact that the name is still properly withheld under another exemption."  "Under Circuit caselaw, this should not be counted as an error."
    Regarding error rate, the court holds that "[t]he Circuit has chosen not to draw a precise line, and until it does so, that choice will be treated as deliberate."  "[T]he Circuit in the past has not only considered the raw error rate, but also the good or bad faith of the agency at issue, means this may be another area of law that calls for 'th'ol' "totality of the circumstances" test.'"  "Although such tests may be 'feared by litigants who want to know what to expect,' . . . given the innumerable variables that might come into play when courts condone a sampling approach – sample size, level of confidence the sample is representative of the whole, number of exemptions claimed per document, the conduct of the litigants and complexity of the requests, to name a few – a hard and fast rule seems particularly ill-suited to serve FOIA's aims."
  • Exemption 7(A):  The court holds that "DOJ is . . . awarded summary judgment with respect to the propriety of withholding Part I of the sample under FOIA Exemption 7(A)."  The court finds that "[t]he FBI's declaration explains the categorical withholdings under Exemption 7(A) here in detail."  The court relates that "the FBI reviewed all documents with an eye toward the so-called 'mosaic' effect."  "By describing the pending investigations that might be impacted by disclosure as 'investigative efforts . . . in the animal rights activist arena,' . . . and noting that Part I records were related to 'the FBI's investigation of potential terrorist acts related to animal rights and ecological extremism,' . . . the FBI has met its burden to show that the records relate to 'enforcement proceedings that are . . . pending or reasonably anticipated' . . . ."  The court then finds that "[e]ach of [the] categorically withheld documents falls into one or both of the 'two categories' functionally defined [by the FBI]."  The court then finds that the FBI "'explain[s] to the court how the release of each category would interfere with enforcement proceedings.'"  "As to exchanges between the FBI and other law enforcement agencies, the agency believes that their release 'would have identified the FBI's investigative interest[s,] . . . revealed the scope and focus' of FBI investigations, 'tipped off individuals who were of interest to law enforcement' and finally given suspects or targets 'the opportunity to destroy evidence' or otherwise avoid detection."  "Similar concerns animated the FBI's withholding of information concerning physical or documentary evidence."  "As the FBI notes, '[o]nce subjects become aware of the FBI's interest in their activities, they could . . . take[ ] actions to conceal their activities, evade detection, and/or suppress or fabricate evidence.'"  "As to confidential witness and source statements, the FBI expresses concern that release could result in 'retaliation' against those cooperating sources."  "With respect to the 'administrative materials' withheld, the FBI justifies withholding reporting communications by noting that their release 'would have revealed the nature and scope of' ongoing investigations by revealing 'the investigative steps taken to obtain witness and source interviews; techniques and investigative methods used to compile and/or solicit information from various sources; and any potential or perceived challenges in the investigations.'"


  • Responding to plaintiff's argument concerning the expiration of Exemption 7(A), the court holds that "[t]o demand that DOJ undertake the Sisyphean task of checking that any exemptions properly applied during that three-year stay remain valid now would run counter to both Circuit caselaw and common sense."  "Should plaintiff wish to determine whether any investigations pending at the time of the FBI's responses have since expired, clearing the way for further disclosures by the Bureau, he may of course file a new FOIA request, 'but if he does, he will stand in line behind other FOIA requesters.'"  "[The] Court will not indulge his request to be 'place[d] . . . at the head of the current [FBI] FOIA queue.'"

    Finally, the court holds that "the FBI has asserted that its justifications for withholding all other Part I records, which the Court has determined were valid, apply with equal force to the records the agency determined could later be released."  "DOJ is therefore awarded summary judgment as to the entire universe of records withheld categorically pursuant to Exemption 7(A).

    The court finds Exemption 7(A) applicable to Part II of plaintiff's sample for the same reasons.
  • Exclusions:  In response to plaintiff's exclusion argument, "[t]he Court has conducted a full review of that declaration and, if such an exclusion in fact were employed, it was and continues to remain, amply justified."
  • Exemption 1:  The court holds that "DOJ's detailed affidavits, which clearly explain both how and why the information was properly classified, have carried its 'light' burden in this context."  The court relates that "[t]he FBI's declarant 'made certain that all procedural requirements of E.O. 13526 were followed.'"  "He also described how he 'personally and independently examined the FBI information withheld pursuant to Exemption 1' and determined that it met the substantive requirements 'to warrant classification at the "Secret" level' pursuant to the E.O."  "In particular, he determined that the classified information pertained to 'intelligence activities (including covert action), intelligence sources or methods, or cryptology.'"  "The FBI declarant explained that release of the information protected by Exemption 1 'would reveal intelligence activities and methods used by the FBI against targets' of investigations, or would 'disclose the intelligence gathering capabilities of the activities or methods directed at targets.'"  Regarding plaintiff's request for in camera inspection, the court rejects it and finds that "[c]ourts must be particularly loath to invoke that discretion 'in national security situations like this case' and 'should not resort to' in camera inspection of Exemption 1 documents 'routinely on the theory that "it can't hurt."'"
  • Exemption 3:  "First, the FBI relies on Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. §§ 2510 et seq., to withhold information on 19 pages of the Part II sample."  The court finds that "[t]he FBI adequately explains that the redacted information related to both the fact of, and information gleaned from, particular Title III intercepts."  "Title III strictly limits the ways in which such information may be disclosed and, therefore, exempts it from FOIA disclosure."  "Second, the FBI initially relied on Federal Rule of Criminal Procedure 6(e) to withhold in part or in full 57 pages of the Part II sample."  "Now, '[a]fter further review, the FBI is no longer asserting Exemption [3] pursuant to Rules of Criminal Procedure Rule 6(e) on the sample pages.'"  However, the court finds that "given the FBI’s failure to explain why it failed to release information from those 45 pages, DOJ possibly committed an additional 45 errors by withholding information pursuant to Exemption 3 and Rule 6(e)."  "Third, the FBI relies on Section 102A(i)(1) of the National Security Act, 50 U.S.C. § 3024(i)(1), to withhold information on 5 pages of the Part II sample."  The court relates that "the FBI explained that it has invoked the Act to 'protect a file number assigned to a specific intelligence matter.'"  The court explains that "so long as the information 'could reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods,' . . . even if only by using it to construct a mosaic, withholding is proper."  "Especially in light of the 'substantial weight' that must be afforded agency affidavits 'in the context of national security,' the FBI's concerns about disclosing the file numbers in question clearly surpass that low bar."  "Fourth, the FBI relies on the Pen Register Act, 18 U.S.C. § 3123, to withhold information on two pages . . . ."  The court finds that "if disclosure of the information 'would necessarily compromise the [pen register] order,' its release would run afoul [of] Congress's intent in calling for those orders to be sealed in the first place."  "[The] Court agrees that if disclosure of the information would be tantamount to revealing the order itself, the information is properly withheld under Exemption 3."  "The information withheld here is just such information."  "The FBI explained, at first, that information was withheld because disclosure 'would reveal the existence or use of a pen register or trap and trace device, or reveal the existence of an investigation involving a pen register or trap and trace device.'"
  • Exemption 4:  The court relates that "[t]he FBI initially asserted this exemption with respect to two pages 'from a book titled "A Poor Man's James Bond" copyrighted in 1972 . . . .'"  "The FBI's theory is that, because the pages were copyrighted, their disclosure might cause substantial harm to the copyright holder's competitive position."  The court holds that "[a]s DOJ's memorandum was submitted before Food Marketing Institute was decided, it does not address these factors."  "Nevertheless, applying the standard from Food Marketing Institute to the FBI's initial justification for withholding the pages in question, the Court holds that they were withheld in error."  "First, the book is not 'actually treated as private by its owner.'"  "Although the copyright for the book in question once belonged to [one author], he seems to have transferred that copyright to another individual who subsequently 'releas[ed] it to the public domain.'"  "Moreover, nothing indicates that the pages in question were 'provided to the government under an assurance of privacy.'"  "Although the pages are evidently already in plaintiff's possession, the two improperly withheld pages will be counted as errors."
  • Exemption 5, Deliberative Process Privilege:  First, regarding "'a memorandum documenting a meeting between two FBI Special Agents and an Assistant United States Attorney . . . discussing a prospective prosecution[,]'" the court holds that "[t]he FBI has . . . adequately stated what deliberative process is involved – 'FBI and DOJ's deliberations,' . . . regarding the direction of a prospective investigation – the role the document played – memorializing a discussion of possible investigative avenues and techniques – and the nature of the decisionmaking authority of the author of the document – the FBI agents and DOJ prosecutor were assigned to the case and responsible for guiding the prospective investigation and prosecution."  "This document was properly withheld."  Second, regarding "an electronic communication 'documenting several FBI[ ] Special Agents' attendance to a conference on animal rights/terrorism[,]'" the court holds that "[t]he deliberative process involved is the discussion of possible investigative avenues to aid in a prospective prosecution . . . ."  Additionally, the court finds that "to the extent [an outside party] was, as plaintiff suggests, 'present during the discussions about the prospective prosecutions,' this matters little as the privilege is asserted to exempt an Electronic Communication memorializing the discussion and nothing suggests that the document in question was ever shared with a third-party."  Third, regarding "an Electronic Communication 'prepared to notify FBI Field Offices of recommendations regarding retention of evidence[,]'" the court holds that "[t]his description fails to establish the applicability of the deliberative process privilege."  "For one, if a document is to qualify for the deliberative process privilege, it must 'precede[ ], in temporal sequence, the "decision" to which it relates.'"  "The FBI asserts that the information withheld was redacted from the same document which contained the final decision."  "Information is not predecisional if it appears simultaneously with the final decision."  "Moreover, the agency's explanation makes clear that the withheld information is more akin to analysis of the ramifications of a final decision not discussions as part of the 'give-and-take . . . by which the decision itself is made.'"
  • Exemptions 6 & 7(C):  The court holds that "[t]he FBI undertook the balancing act required by Exemption 7(C)."  "To do so, the agency first split its invocation of Exemption 7(C) into eight categories [of third parties]."  "For each category, the FBI then identified the privacy interests at stake and balanced them against the public's interest in disclosure."  The court relates that "Plaintiff neither challenges the categories defined by the FBI nor the privacy interests asserted to support those categories."  "Moreover, he fails to even mention the public's interest in disclosure, let alone 'produce evidence' that disclosure is necessary to uncover some government malfeasance."  The court finds that "Plaintiff's failure to establish the complete absence of privacy interests on the part of individuals for whom he submitted privacy waivers and obituaries combined with his failure to produce evidence that disclosure is necessary to ferret out FBI misdeeds means he cannot show Exemption 7(C) was improperly invoked to hide their identifying information." 

    Regarding plaintiff's objection concerning certain individuals "'having pled guilty'" and therefore having a diminished privacy interest, the court holds that "while 'disclosure of convictions and public pleas is at the lower end of the privacy spectrum,' that does not mean 'that a convicted defendant has no privacy interest in the facts of his conviction.'"  "Plaintiff's failure to even mention the possible public interest in disclosing the names of the individuals identified as having pled guilty means that the withholding of their names was proper."  Regarding plaintiff's objection concerning the FBI failing to "'ascertain the life status of certain individuals who figure prominently in the withheld documents and who are, in fact, deceased,'" the court holds that "Plaintiff's failure to identify a public interest in disclosure, however, is again fatal."  "As noted above, even if the FBI had determined that the individuals were deceased by conducting an adequate life-status check, that fact would 'by no means extinguish[ ]' the individual's privacy interests."  Regarding plaintiff's final challenge, the court holds that "[t]he public mention of an individual's name in one context does not preclude the FBI from withholding it in another."

    However, the court relates that "plaintiff complains that the FBI redacted the name of a 'high-ranking FBI official who presented testimony to Congress' from two pages within Part II of the sample."  The court holds that "[t]his single mistake on a single page will be tallied in calculating the error rate within the sample."
  • Exemption 7(D):  The court relates that "[t]he FBI has invoked Exemption 7(D) to withhold five categories of information:  (1) names, identifying data and/or information provided by individuals under implied assurances of confidentiality; (2) names, identifying information about, and/or information provided by sources under express assurances of confidentiality; (3) confidential file numbers; (4) foreign government agency information under express confidentiality; and (5) confidential source symbol numbers."  "Plaintiff does not contest the propriety of the FBI's withholding of confidential file numbers and confidential source symbol numbers."  "Plaintiff's challenges focus on the remaining three categories."  Regarding express assurances of confidentiality, the court finds that the FBI used "probative indications that express assurances of confidentiality were given and that the FBI's redactions were proper."  The court explains that "the FBI uses the context of the records," including "'notation[ ] on the face of a withheld document,'" and also, "if the FBI is uncertain about an individual's status as a confidential informant, its 'FOIA analysts will also reach out to FBI investigators for additional information.'"  "The FBI also explains that some withheld information was inadvertently coded as pursuant to an implied assurance of confidentiality when the information should have been labeled as protected pursuant to an express assurance of confidentiality."  Regarding implied assurances of confidentiality, the court relates that "the FBI asserts that the withheld information relates to sources in the investigation of 'the arson of University of California at Davis's . . . Animal Science Building on April 17, 1987' and the separate investigation into 'the placing of an improvised explosive device ("IED") outside the United States Surgical Corporation in Norwalk, Connecticut, on November 11, 1988.'"  The court holds that "[t]hese are precisely the kind of 'serious or violent crimes' that would make informants fearful to come forward."  The court also relates that "[t]he relationships of the sources in question are explained by the FBI."  Specifically, "[t]he proximity of all these individuals and organizations to these violent or potentially violent crimes, combined with the unique information the sources provided."  However, the court notes that "DOJ does not allege that any of the relevant sources received payment . . . ."  Also, "the FBI has not provided any information about the source's 'manner of communication.'"  "Taken together, however, the strength of the first two factors means that the FBI has carried its burden to show that an implied assurance of confidentiality was given to the sources in question and DOJ is entitled to summary judgment in this respect as well."  However, the court does find that one "initial withholding was in error and will thus be counted as an error [for purposes of] calculating the error rate."
  • Exemption 7(E):  The court relates that "the FBI has invoked Exemption 7(E) to withhold eleven categories of information:  (1) sensitive file numbers or subfile names; (2) monetary payments for investigative techniques; (3) locations and identity of FBI and/or Joint Units, Squads, and/or Divisions; (4) dates and/or types of investigations; (5) collection/analysis of information; (6) database information and/or printouts; (7) undercover operations; (8) information regarding targets, dates, and scope of surveillance; (9) statistical information contained [in] FBI FD-515 forms; (10) investigative focus of specific investigations; and (11) a specific law enforcement technique utilized to conduct national security investigations."  The court finds that "[t]he FBI detailed its initial justifications one by one, explaining how release of information in each of these categories 'logically . . . might create a risk of circumvention of the law.'"  "According to the FBI, releasing the 'file numbering convention' would risk identifying the 'investigative interest or priority given to such matters,' because by '[a]pplying a mosaic analysis, suspects could use [the] numbers . . . in conjunction with other information known about other individuals and/or techniques, to change their pattern of activity to avoid detection, apprehension, or create alibis for suspected activities.'"  "As for information regarding monetary payments, the FBI states that '[r]evealing the amount of money the FBI has paid or plans to pay in order to implement certain investigative techniques would reveal the FBI’s level of focus on certain types of law enforcement or intelligence gathering efforts.'"  "The FBI seeks to protect locations of FBI units, squads, and/or divisions because revealing such information could 'allow hostile analysts to determine where geographically the FBI is focusing its investigative resources, and allow them to relocate their criminal activities elsewhere,' while revealing those units' identities would allow individuals to determine 'exactly what the FBI's interest is.'"  "Revealing the dates and/or types of investigations, 'would allow individuals to know the types of activities that would trigger a full investigation as opposed to a preliminary investigation' and 'predict FBI investigative reactions' to help them 'avoid detection.'"  "Protecting the 'methods the FBI uses to collect and analyze the information it obtains' is important to prevent individuals from learning 'how and from where the FBI collects information' enabling 'criminal[s] to educate themselves about the techniques employed for the collection and analysis of information and the types of information of greatest value to FBI investigations.'"  "Next, the FBI explains that release of database information and/or printouts 'could enable criminals to employ countermeasures to avoid providing the FBI with key investigative data and/or allow them to predict how the FBI utilizes certain data to further its investigations.'"  "The FBI also withheld 'specific details of particular [undercover] operations [that] are not [publicly] known' including 'how it conducts undercover operations and . . . the specific techniques used' to avoid possibly 'devastating operational consequences.'"  "The FBI next asserts that revealing the investigative focus of specific investigations would 'reveal the scope of the FBI's programs and the strategies it plans to pursue in preventing and disrupting criminal activity.'"  "Finally, the FBI refers to a 'sensitive law enforcement technique' that it 'cannot name . . . even generically, without revealing information that is, itself, exempt.'"  "Although 'the technique may be known by the public in a general sense,' the public is not aware of 'its use in the specific context of this case,' and neither are 'details about and analysis of [the] . . . technique.'"  "To reveal the 'technique and these details would effectively reveal the specifics of how and in what settings the technique is employed.'"  The court holds that "[t]he above summary of the detail the FBI provides regarding the information it has withheld pursuant to Exemption 7(E) is more than sufficient to 'demonstrate logically how the release of the requested information might create a risk of circumvention of the law.'"  "Plaintiff raises myriad objections, but none seriously undermines the FBI's initial declarations."  "Given, however, the FBI's shifting justification for many documents and its subsequent release of material on a number of pages, the Court is unable to determine precisely how many withholdings were made in error."  "In addition to the FBI's single certain error it committed by withholding the words 'hotel room' from a single document, there are eleven instances of potential error in the agency's application of Exemption 7(E)."
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court relates that "[e]xcept in limited circumstances detailed above, plaintiff has not challenged the FBI's efforts to segregate exempt material from nonexempt materials."  "Plaintiff's choice not to challenge the FBI's segregability analysis also means he has done nothing to overcome the presumption of compliance the FBI is afforded."  "Given the FBI's diligent release of tens of thousands of documents to plaintiff, [the court holds that] DOJ is entitled to summary judgment with respect to the FBI's segregability analysis."
  • Litigation Considerations:  Regarding defendant's error rate, the court finds that "[i]n the worst-case scenario, then, the FBI has committed 81 errors throughout the 501-page Part II sample."  "The error rate, at its highest, is thus just over 16%."  "As noted above, whether this error rate is sufficient to warrant complete reprocessing of the FBI's withheld records, is a question that must take into account the totality of the circumstances."  The court finds that "the vast majority of the potential errors were only revealed because the FBI diligently attempted to release all nonexempt segregable material."  "Plaintiff has pointed to no authority for the proposition that full reprocessing would be warranted for error rates less than 25% or even 20%."  The court holds that "[g]iven the FBI's diligent processing of hundreds of thousands of pages in this case and its substantial efforts to release as many of those pages as possible, a potential error rate of 16%, and a true error rate that is likely much lower, is insufficient to justify complete reprocessing."  "Except with respect to the few redactions the FBI must remove noted above, . . . DOJ is thus entitled to summary judgment with respect to the entire universe of records processed by the FBI."

    The court relates that "Plaintiff's alternative bid to secure 'more limited relief,' . . . is denied."  "In particular he requests that 'if a particular . . . exemption category has an unacceptably high error rate, the FBI should be ordered to reprocess all records in which that exemption category is invoked.'"  The court holds that, "[u]nder plaintiff's theory, a single mistake with respect to one of those exemptions would result in full reprocessing of records in which that exemption was asserted."  "This would transform a tool intended to lessen the bureaucratic burden into one almost certain to lead to more work for the FBI."  "Had the parties wished for the more targeted approach proposed by plaintiff, they could have designed samples to test each of the various asserted exemptions."  "They did not."  "The resulting sample, while well picked to test the accuracy of the FBI's withholdings overall, is not a good tool for the more precise relief plaintiff now, belatedly, requests."
  • Exemption 3:  The court relates that "ATF invoked Exemption 3 pursuant to Federal Rule of Criminal Procedure 6(e) which prohibits disclosure of 'matter[s] occurring before the grand jury.'"  The court relates that "ATF has asserted Exemption 3 to withhold 'documents and information submitted to the Grand Jury.'"  "'If disclosed,' the ATF says, the withheld 'material would reveal protected inner workings of Grand Jury proceedings, including, most significantly, the substance of the Grand Jury's investigation and the evidence i[t] considered.'"  The court holds that "[o]n the current record, [the question of "whether the records or information withheld by the ATF 'fall within Rule 6(e)'"] cannot be satisfactorily answered."  "ATF, which has submitted only a single declaration in this case, will be given the opportunity to submit a more detailed explanation for why the records in question could not have been disclosed at the time of the agency's initial response to plaintiff's FOIA requests."
  • Exemption 4:  The court holds that "ATF's Vaughn Index and declaration do not contain sufficient information to measure against [the Exemption 4] standard."  "For that matter, they do not contain sufficient detail to measure the application of Exemption 4 against any standard."  "The declaration merely lists the kinds of information withheld but makes no attempt to explain why such information is 'confidential.'"  "Given the new Exemption 4 standard and the utter lack of any detail as to why the information withheld by the ATF should be considered confidential, ATF will also be provided an opportunity to either release the information withheld under Exemption 4 or submit a more detailed explanation of how its withholdings fall under this exemption's aegis."
  • Exemption 5, Deliberative Process Privilege & Litigation Considerations, "Reasonably Segregable" Requirements:  Regarding ATF's withholding of "'report[s] of investigation[s],' a 'telecommunication message,' and various 'draft document[s],'" the court holds that "ATF . . . has met its burden."  "The agency explains the deliberative process involved is the discussion of 'alternative avenues of action available in the investigation' at issue."  "The role the documents played in the deliberative process is described as memorializing the Special Agent's communication of his opinions and recommendations to 'a superior or other agent.'"  "Finally, the declaration explains that this Special Agent was empowered to 'make . . . decisions as part of a criminal investigation,' . . . which adequately describes the 'nature of the decisionmaking authority vested in the . . . person issuing the disputed opinion,' . . . ."  "As to plaintiff's segregability complaint, ATF explains that 'staff reviewed each page of the material identified as responsive to ensure that no additional information could be released' and that '[a]ll releasable information has been provided to Plaintiff.'"  "Plaintiff does nothing to rebut the 'presumption that [ATF] complied with the obligation to disclose reasonably segregable material.'"
  • Exemption 7(D):  The court holds that "ATF has also met its burden with respect to its application of Exemption 7(D)."  "As the agency explained, it withheld 'portions of ATF Reports of Investigation that would reveal the identity of confidential sources or the information they provided' and '[d]ates that could be used for identification of the aforementioned individuals.'"  "ATF notes that sources it has sought to protect were 'cooperat[ing] under the assumption of confidentiality.'"
  • Exemption 7(E):  The court relates that "[w]ith respect to Exemption 7(E), plaintiff challenges only ATF's application to 'withhold from Plaintiff information about techniques for funding law enforcement investigations.'"  "He makes the same arguments he made with respect to funding requests and the funding of individual techniques in challenging the FBI's use of Exemption 7(E)."  The court holds that "[t]hese arguments are no more persuasive here and DOJ will likewise be granted summary judgment with respect to the ATF's application of Exemption 7(E)."
Court Decision Topic(s)
District Court opinions
Exemption 1
Exemption 3
Exemption 4
Exemption 5
Exemption 5, Deliberative Process Privilege
Exemption 6
Exemption 7(A)
Exemption 7(C)
Exemption 7(D)
Exemption 7(E)
Litigation Considerations, Adequacy of Search
Litigation Considerations, Discovery
Litigation Considerations, “Reasonably Segregable” Requirements
Updated November 10, 2021