Shapiro v. DOJ, No. 13-555, 2017 WL 908179 (D.D.C. Mar. 6, 2017) (Moss, J.)

Shapiro v. DOJ, No. 13-555, 2017 WL 908179 (D.D.C. Mar. 6, 2017) (Moss, J.)

Re: Request for processing documents associated with FOIA requests that plaintiffs or others had previously submitted to FBI

Disposition: Granting defendant's motion for leave to file declaration ex parte and in camera; denying plaintiff's motion to strike and to make public portions of defendant's previous declarations; 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

• Litigation Considerations, In Camera Inspection: "[T]he Court will grant the government's motion to file the eighth . . . declaration in camera and ex parte, and will deny Plaintiffs' cross-motion to strike or make public portions of [previous] [defendant] declarations." "The Court has reviewed the proposed eighth . . . declaration, and concludes that it contains sensitive information not appropriate for disclosure and which is necessary for the Court to make a decision on the agency's renewed motion for summary judgment, and that it does not contain impermissible legal argument." Additionally, "[t]he Court has reviewed the redacted portions of those declarations, and concludes that they contain sensitive material that cannot be made public without thereby disclosing the very information that the agency withheld in the underlying FOIA requests."
   
• Exemption 7(E): First, "the Court concludes that the FBI has met its modest burden of showing 'logically how the release of [the processing records] might create a risk of circumvention of the law.'" The court finds that "the search slips at issue are part of a complex mosaic relating to on-going FBI operations, involving one of the FBI's domestic terrorism priorities, which has been the subject of a staggering number of FOIA requests seeking information about many specific individuals and organizations." The court relates that "the FBI faces a conundrum[]" concerning search slips and its exclusion policy. "It cannot . . . simply 'deny that the search slip [exists] . . . because search slips are created as a matter of course.'" "It cannot release the search slip, which even in redacted form would likely reveal 'the existence of the file that the FBI told the requester did not exist.'" "And it cannot withhold 'the entire search slip under one of the exemptions, because the withholding itself would "tip off" the requester that the search slip must refer to a file that he or she had previously been told did not exist.'" Although "the Court rejected the FBI's [previous] efforts to protect all search slips from disclosure," "[t]he Court concludes that the FBI's case-specific assertion of Exemption 7(E) now clears the hurdles[.]" The court explains that "Exemption 7 protects 'information compiled for law enforcement purposes,' . . . and the absence of a record can reflect 'information' compiled by the agency just as much as the existence of a record." Additionally, "[t]he Court [is] convinced that information contained in the limited universe of search slips now at issue risks disclosing a 'technique' or 'procedure' that could aid in the 'circumvention of the law.'" "As explained above, there is little meaningful difference between records compiled for law enforcement purposes and information relating to the search of those records." "In both cases, knowledge of the existence or non-existence of an investigation, for example, might assist those seeking to evade detection." "And, more importantly for present purposes, the existence or non-existence of such an investigation would likely reflect important information about the 'scope of the FBI's [domestic terrorism] program in the United States, the scope and focus of its investigative efforts, and strategies it plans to pursue in preventing and disrupting domestic terrorist activity.'" Also "importantly, the FBI has explained how these requests fit 'within the holistic context of [plaintiff's] universe of inter-related domestic terrorism requests.'"
  
  Second, "[t]he Court . . . will deny both the FBI's and Plaintiffs' cross-motions for summary judgment with respect to the FBI's withholding of [certain] file numbers." The court finds that "[p]laintiffs are correct that file numbers serve an administrative purpose – permitting the FBI to track and organize documents – [but they] they ignore the fact that the tracking system is based on information collected for law enforcement purposes." "The relevant file numbers are not generated at random but, rather, incorporate information compiled in the course of enforcing the criminal laws." The court also "agrees, as have other judges in this district, that file numbers can, at least at times, reveal law enforcement 'techniques or procedures.'" However, the court finds that "[t]he proper resolution of the factual question whether disclosure of the file numbers would reveal a law enforcement technique that a 'nefarious' person might then exploit to circumvent the law is, however, far less clear." The court explains that "[it] is not convinced that the mere fact that investigation is closed severs the 'logical' link between release of the information and the risk of circumvention; knowing that the FBI has historically focused its enforcement efforts in a particular region, for example, might aid a criminal in circumventing the law." "But, at the same time, the Court cannot discern from the existing record whether the relevant investigations are open, whether they closed in the past few years, or whether they closed decades ago." The court also "direct[s] that the parties meet and confer regarding Plaintiffs' official acknowledgment argument and, if they are unable to reach agreement, the FBI may address the issue in its renewed motion for summary judgment."
   

• Exemption 7(A): "[T]he Court will grant summary judgment in favor of Plaintiffs with respect to the FBI's assertion of Exemption 7(A) as to the FOIA processing records associated with the 'parent' FOIA request for records relating to [a closed investigation of a] murder."
   

• Exemption 1: "The Court concludes that the FBI has provided ample evidence that the information in question was properly classified before Plaintiffs' FOIA requests, and will, accordingly, grant the FBI's renewed motion for summary judgment as it relates to information exempted under FOIA Exemption 1." Responding to plaintiff's marking concerns, the court finds that "[defendant] attests that Plaintiffs have misinterpreted certain markings on the documents and that the relevant records have, in fact, been classified since at least 2007 and were never subsequently declassified." "According to [defendant], '[t]he markings on the documents to which Plaintiffs refer . . . were placed there by [defendant] as part of its review;' they 'do not demonstrate that these documents were classified or reclassified after receipt of Plaintiffs' FOIA requests;' and, in fact, the 'documents were classified years before Plaintiffs submitted their FOIA requests.'"
   

• Exemption 3: "Although the FBI's reliance on the [National Security Act of 1947] is entitled to substantial deference, the declarations it has provided to date are simply too broad and conclusory to allow the Court to perform the type of 'searching de novo review' required by the governing precedent." "As a result, the Court will deny both the FBI's and Plaintiffs' cross-motions for summary judgment as to Exemption 3." The court relates that defendant "attests that 'the FBI has determined that intelligence sources and methods would be revealed if any of the withheld information is disclosed to plaintiffs,' . . . and that 'disclosure of this information presents a bona fide opportunity for individuals to develop and implement countermeasures, resulting in the loss of significant intelligence information, sources, and methods relied upon by national policymakers and the I[ntelligence] C[ommunity] to safeguard national security[.]'" "And . . . that '[t]he FBI cited Exemption 3 . . . to protect information related to . . . the National Intelligence Program . . .,' which 'consists of all programs, projects, and activities of the Intelligence Community, as well as any other programs of the Intelligence Community designated jointly by the Director and the head of a United States department or agency or by the President.'" "'The activities of the Intelligence Community . . . include the strategic use of various sources to obtain intelligence related information and are through a myriad of available methods of intelligence gathering, not all of which are known to the public.'"
   

• Exemption 5, Attorney Work-Product and Deliberative Process Privilege: First, "[t]he Court . . . will grant the FBI's motions for summary judgment with respect to its reliance on the deliberative-process privilege to withhold records in response to [one] FOIA request, but only to the extent those records fall within the second factual justification." "Moreover, even as to those records, the FBI is obligated to segregate factual material from deliberative material, . . . unless the records are also subject to the attorney-client privilege." The court explains that "at least some of the records at issue[, "processing notes created by FBI analysts in responding to a [previous] request[,]"] were 'prepared in responding to other FOIA lawsuits filed by [P]laintiffs,' and that those records 'reflect [ ] deliberations' about the cases and the FBI's 'litigation strategy and defense.'" Second, the court holds that "[g]iven that the records at issue[, processing notes created by a litigation paralegal,] were created 'because of' the [certain] litigation; the evidence that those records differ in at least certain material respects from the records that would have been generated in the absence of the litigation; and the inherent difficulty in determining how the pendency of the litigation affected each specific entry, the Court will grant the FBI's motion for summary judgment as to the records requested by plaintiff . . . relating to the . . . litigation." The court relates that defendant states that "'[t]hese printouts [of searches performed by the paralegal] represent a more expansive search than actually required by the FOIA and include information later eliminated as not responsive or outside the scope of the request.'" The court also relates that "[p]laintiffs 'concede[ ] that there may be some information in these records which would not have been created but for the litigation[.]'" The court finds that "the difficulty in separating the 'wheat from the chaff' is not a product of the FBI's lack of diligence, but the inherent difficulty in determining whether and how records prepared because of litigation differ from records that might have been created in the absence of litigation." However, "[t]he Court will . . . deny the parties' cross-motions for summary judgment relating to the segregability of non-public information contained in the records responsive to [these] request[s]." The court finds that "in light of Plaintiffs' colorable contention that the declarations submitted in the prior litigation revealed significant details about the searches and that the FBI has waived any right to object to the disclosure of that information, and given the potential value to Plaintiffs and the public of an ability to look behind the types of agency declarations that typically dominate FOIA litigation, the Court will require the FBI to file copies of the search slips from one randomly selected FOIA request, from which only the nonpublic information has been redacted."