Shapiro v. DOJ, No. 13-555, 2016 WL 287051 (D.D.C. Jan. 22, 2016) (Moss, J.)

Shapiro v. DOJ, No. 13-555, 2016 WL 287051 (D.D.C. Jan. 22, 2016) (Moss, J.)

Re: Request for records concerning the processing of prior FOIA requests

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

• Exclusions:  The court holds that "[t]he FBI’s sweeping policy of withholding all search slips for investigative records, as a result, cannot be justified based on the plain terms of Section 552(c)."  "The Court does not doubt that the problem the FBI describes is a serious one."  "Congress specifically authorized law enforcement agencies to treat certain records as 'not subject to the requirements of' FOIA."  "Responding to requests for search slips and processing notes might undermine the FBI’s ability to exercise that authority by enabling sophisticated requesters to infer the existence of those records."  "The question before the Court, however, is not the existence or the gravity of the problem facing the FBI, but whether the solution the FBI has adopted is consistent with FOIA."  The court explains that "[the] narrowly defined exclusions relate to sensitive matters of law enforcement and national security."  "They have nothing to do with the day-to-day administration of FOIA itself."  The court also rejects defendant's request for "the Court to recognize a new doctrine—akin to the Glomar and mosaic doctrines, but far more expansive in scope—that would permit it to withhold an entire category of otherwise unprotected records in order to further the purpose of the FOIA exclusions."  "In practice, this would mean withholding hundreds of unprotected processing records for every document that might permit a sophisticated FOIA requester to infer the existence of protected information."  The court finds that this approach "cannot be reconciled with the statute."
   
• Exemption 7, Threshold:  The court holds that "[t]he search slips are not themselves 'records ... compiled for law enforcement purposes'; they are records compiled for the purpose of responding to FOIA requests."  In response to defendant's argument that some information on the search slips meets Exemption 7's threshold requirement, the court finds that "[i]n the absence of a showing that all of the withheld search slips in their entirety constitute records 'complied for law enforcement purposes,' the FBI’s categorical reliance on Exemption 7 fails at the threshold."
   
• Exemption 7(E):  The court holds that "[e]ven if the FBI could demonstrate that it would be unreasonable to require it to segregate the material that would fall within the scope of Exemption 7 from the material that would not, it is doubtful that the harm produced by disclosure of the search slips would sound in Exemption 7(E)."  The court finds that "the FBI does not point to any 'technique,' 'procedure,' or 'guideline' that disclosure of the search slips might illuminate."  In response to defendant's arguments, the court finds that "the FBI’s exercise of its statutory authority to exclude documents from FOIA's reach is not the kind of 'technique' or 'procedure' to which Exemption 7(E) refers."
   
• Exemption 6:  "The Court . . . has no difficulty concluding that the FBI appropriately relied on Exemption 6 in withholding the names of individual analysts on the case evaluation forms."  The court explains that "[i]t is well established within this circuit that Exemption 6 protects the names of agency employees on evaluation forms, as well as any other information that would identify individual employees."
   
• Exemption 2:  "[T]he Court cannot conclude that . . . case evaluation forms relate solely to trivial or minor matters, akin to the use of parking facilities or lunch hours, that are of no public interest."  "To the contrary, even if any single case evaluation form is unlikely to be newsworthy, FOIA requesters may, through careful review, learn a great deal about how the FBI discharges its FOIA responsibilities."  The court explains "that Plaintiffs are correct to argue that Exemption 2 shields from disclosure only 'documents that deal with 'trivial administrative matters of no genuine public interest,'' . . . but are wrong to suggest that this inquiry is distinct from the inquiry into whether documents relate 'solely' to personnel matters."  "If a record is a matter of public interest, it cannot relate 'solely' to personnel matters, because that term is best understood to limit the reach of Exemption 2 to matters that are inherently 'minor or trivial.'"  Additionally, the court finds that "the fact that the FBI uses the forms solely for the purpose of evaluating individual employees does not mean that the forms 'relate[ ] solely' to employee management."  "To the contrary, the forms reflect information regarding how the FBI goes about fulfilling its obligations under FOIA and, thus, at least in that sense 'relate' to far more than issues of internal management."  "Viewed from this perspective, the forms 'relate'—at least in part—to how the FBI performs one of its statutory obligations."  "Because the records, accordingly, do not relate 'exclusively or only' to employee management, it does not matter whether the FBI limits their use to that purpose."
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  "The Court agrees that [plaintiff] exhausted its challenge to the FBI’s search slip policy."  The court relates that "[t]he FBI’s position appears to be that [plaintiff] should have waited until the FBI itself asserted the policy—after the second remand—and then appealed the FBI’s assertion of the policy to OIP."  However, the court finds that "such protracted proceedings would hardly further the purpose of the exhaustion requirement, which is to permit the agency 'an opportunity to exercise its discretion and expertise on the matter.'"  "OIP, the body designated by the Justice Department to handle FOIA appeals, had already concluded that the FBI 'was not required to conduct a search' for search slips because they 'would be categorically exempt from disclosure.'"
   
• Waiver:  The court holds that waiver did not occur regarding requested search slips.  The court relates that "[t]he plaintiffs do not dispute that [Exemption 7(C)] would ordinarily apply to these records."  "They argue only that the records fall within the scope of the 'official-acknowledgment' doctrine, which if properly invoked requires disclosure even in the face of an otherwise available FOIA exemption."  The court finds that "[c]onsidered as a whole, however, [defendant's] Declarations filed in [related] cases are neither as specific nor as detailed as the underlying search slips and processing notes."  "That is, although [defendant's] Declarations filed in these cases contain a significant amount of detailed information about the records responsive to the original requests, as well as the FBI’s efforts to locate, identify, and produce those records, the declarations are not a perfect match for the search slips and processing notes created by the FBI during the search."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court finds that "[n]either party . . . has addressed the segregability question, and so the Court lacks a record on which to make a finding regarding segregability."  The court explains that "[t]he fact that the FBI was permitted to withhold information [contained in requested search slips under Exemption 7(C)] does not resolve the question whether it was required to segregate and produce information that was made public in those declarations."
   
• Litigation Considerations, Adequacy of Search:  The court finds that "[plaintiff] did not exhaust his challenge to the adequacy of the FBI’s search."  The court explains that "[plaintiff] appeal was limited to 'the FBI’s withholdings,' . . . he did not argue that the FBI had failed to conduct an adequate search."  The court also rejects plaintiff's "argu[ment] that his failure to exhaust should be excused because he 'raised an objection to the adequacy of [the] FBI’s search as soon as he had reason to believe that it was inadequate.'"  However, the court does caution that "[t]his is not to say that a FOIA requester can never challenge the adequacy of the FBI’s search in court if he or she did not do so below."  "There may well be times when such a person learns only in court that an agency’s response was inadequate."  "But this is not such a case."
   
• Exemption 5, Attorney Work-Product:  "[T]o ensure a more complete record, the Court will deny the pending motions for summary judgment with respect to the FBI’s assertion of the work product privilege and direct the FBI to file an additional evidentiary submission regarding the nature of the withheld documents."  "If the FBI’s supplemental Vaughn index (or the equivalent thereof) makes clear that the records are not 'substantially similar' to the processing records that the FBI ordinarily produces in response to a FOIA request, there will be no need to resolve what appears to the Court to be a novel question of law."  The court explains that "[plaintiff's] argument proceeds from the premise that the withheld documents are simply the search slips and processing notes that the FBI should have created, but did not create, when [a previous] plaintiff submitted his initial FOIA request."  "The only thing that permits the FBI to assert the work product privilege, [plaintiff] contends, is that the FBI failed to run adequate searches for records until after the plaintiffs filed suit."  However, the court cautions that "[e]ven assuming that some or all of the records the FBI withheld under Exemption 5 are 'substantially similar' to traditional processing notes, however, it is also far from clear that it would have been inappropriate for the FBI to have withheld them."  "Regardless, the creation of a more substantial record may shed light on the dispute between the parties and permit a more nuanced resolution of their dispute."
   
• Exemptions 6 and 7(C):  "The Court concludes that the FBI appropriately withheld the names under Exemption 7(C)."  The court relates that "the FBI withheld the names 'of any living third parties related to the Jonestown massacre who were of investigative interest to the FBI in relation to that matter and to third parties 'whose names appeared on printouts of searches conducted in responding to the Jim Jones/Jonestown massacre request.'"  Additionally, the court finds that "[t]he declaration makes clear that the official-acknowledgment doctrine does not apply to the names that the FBI withheld under Exemptions 6 and 7(C)."
   
• Exemption 5, Deliberative Process Privilege:  "[I]t is clear that the Court cannot resolve the merits of the FBI’s assertion of the privilege on the present record, which is devoid of any non-conclusory factual support for the FBI’s assertion of Exemption 5 in this case."  The court explains that "the FBI has yet to demonstrate that it is entitled to prevail on this issue because [defendant's] Declarations contain almost no factual material that would explain why the FDPS processing notes compiled in processing [plaintiff's] request are any more 'predecisional' or 'deliberative' than any other FDPS processing notes."  The court also finds that "[b]ecause the FBI has abandoned its position that FDPS processing notes are categorically protected by the deliberative process privilege, the Court need not address that issue—other than to note that any attempt to claim categorical protection under the deliberative process privilege would be difficult to maintain given agencies’ obligation to segregate factual material from deliberative material when asserting the deliberative process privilege."