Shem-Tov v. DOJ, No. 17-2452, 2021 WL 1209297 (D.D.C. Mar. 30, 2021) (Moss, J.)

Shem-Tov v. DOJ, No. 17-2452, 2021 WL 1209297 (D.D.C. Mar. 30, 2021) (Moss, J.)

Re:  Request for defendants' communications with Israeli government concerning requests of Israeli law enforcement for assistance from the United States under the Treaty on Mutual Legal Assistance in Criminal Matters ("MLAT") between the United States and Israel

Disposition:  Granting defendant's renewed motion for summary judgment

• Exemption 7, Threshold:  The court relates that "the records were received from a foreign state (or included communications with the foreign state) for the purpose of assisting that state in its own investigation and prosecution arising from alleged violations of the foreign state's criminal law."  The court finds that "the fact that the information at issue here was provided to the [U.S. National Central Bureau's ("USNCB")] by a foreign NCB to assist a foreign law enforcement investigation does not undermine the conclusion that the information was 'compiled for law enforcement purposes.'"  "The USNCB needed information from the foreign NCB 'for the purpose' of guiding and coordinating the U.S. efforts to obtain the requested information for the foreign NCB."  "That was a 'law enforcement' purpose, and nothing more is necessary to satisfy the threshold requirement of Exemption 7."
   
• Exemption 7(D):  The court finds that "because materials collected to aid foreign law enforcement efforts are records 'compiled for law enforcement purposes,' the Court sees no reason that foreign NCBs seeking aid with their own criminal investigations would not qualify as 'sources' within the meaning of Exemption 7(D)."  "To be sure, at first blush one might question whether a foreign state that seeks information from the United States constitutes a source."  "But this case – and the details offered in [defendant's] declaration – demonstrate that, in seeking assistance, an entity can also qualify as a source, because the request for assistance itself conveys confidential information that the responding entity needs to provide the requested assistance."  The court also finds that "[a]lthough the documents withheld in part pursuant to Exemption 7(D) did not directly originate from the foreign NCB, they included the same type of information and, at times, merely forwarded material provided directly by the foreign NCB."  "In short, the foreign NCB was, in fact, the 'source' of the information at issue, and that information was provided to the USNCB and DHS for a 'law enforcement purpose' – namely, to inform the U.S. law enforcement authorities about the nature and focus of the foreign state's investigation, so they could assist the foreign authorities in that investigation."  "Finally, the Court must determine whether the foreign NCB is not only a source, but a confidential one."  "Given the focus of the ["'Rules on the Processing of Data' [which] 'govern[] the use of, and access to all data processed in the INTERPOL Information System, including the documents in question in this matter,'"], which amounts to 'contemporaneous documents discussing practices or policies for dealing with the source or similarly situated sources,' . . . and the nature of the information at issue, the Court is persuaded that the foreign NCB shared the information with the USNCB with the express understanding that it would remain confidential, absent prior authorization from the foreign NCB."  "Because the Court is persuaded that the foreign NCB acted under an express assurance of confidentiality, the Court need not reach the USNCB's separate contention that an assurance of confidentiality can be inferred from the circumstances."
   
• Waiver & Discretionary Disclosure, Waiver:  "The Court . . . rejects Plaintiff's waiver argument."  The court finds that "with limited exceptions not applicable here, the concept of waiver does not apply to withholdings made pursuant to Exemption 7(D)."  "Plaintiff points to several alleged public disclosures of at least some of the information at issue, . . . but even if these sources disclosed some or all of the information at issue or the identity of the foreign NCB, they would not waive the protection afforded to the confidential information and source by Exemption 7(D)."  "And, likewise, none of these alleged disclosures cast doubt on the Court's conclusion that the communications at issue were, in fact, subject to an express commitment of confidentiality."
   
• Procedural Requirements, "Reasonably Segregable" Obligation:  The court finds that "[i]n the case of Exemption 7(D)'s protection for information furnished by a confidential source in the course of a criminal investigation, this analysis is more straightforward than typical:  the Exemption protects 'all information obtained from' such sources."  "Accordingly, the USNCB's withholding of the 11 documents that originated from the foreign NCB requires no segregation."  "Similarly, all of the material redacted on Exemption 7(D) grounds from the remaining records at issue either originated from the foreign NCB or revealed the identity of that source or the substance of its communications."  "To the extent those records were amenable to segregation, the USNCB has released the segregated material."