Smith v. DOJ, No. 21-1291, 2022 WL 4110291 (M.D. Fla. Sept. 8, 2022) (Merryday, J.)

Smith v. DOJ, No. 21-1291, 2022 WL 4110291 (M.D. Fla. Sept. 8, 2022) (Merryday, J.)

Re:  Request for records concerning third party

Disposition:  Denying without prejudice defendant’s motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that, “[a]lthough [plaintiff] challenges some reasonable conduct, such as the decision to search for only one iteration of [the subject’s] name, [plaintiff] correctly argues that the FBI fails to demonstrate an adequate search for documents responsive to [plaintiff’s] . . . request.”  The court relates that “DOJ argues, the FBI reasonably declined to search for the IP address because ‘there was no evidence that [ ] any other locations or data-bases [ ] would contain any additional documents.’”  “But, [the court finds that] . . . the FBI fails to explain the seemingly ‘nonsensical’ presumption that [plaintiff’s] casefile would ‘point to’ a different location containing a document responsive to request twelve.”  The court reasons that “an index –  not a casefile – would direct the FBI to another casefile containing responsive documents.”  “Thus, the claim that [plaintiff’s] case file offered no direction to an-other responsive file is insufficient to justify the failure to search for the IP address.”
   
• Exemption 7(A):  The court relates that “the FBI withholds under exemption 7(A) documents in two broad categories, each of which category the FBI further divides into several ‘functional categories.’”  “First, the FBI identifies ‘administrative materials,’ including ‘case captions, serial numbers, identities of FBI field offices[,] [and] detail[ed] instructions designed to ensure that investigative procedures are conducted within the appropriate FBI and DOJ guidelines.’”  “The FBI divides ‘administrative materials’ into two functional categories:  ‘reporting communications,’ which ‘permit the FBI [and] other agencies to monitor the process of the investigation and to facilitate [the investigation’s conduct],’ and ‘administrative instructions,’ which ‘set[ ] out . . . investigative guidelines’ and ‘request[ ] . . . specific investigative inquiries at various FBI field offices or other government agencies.’”  “Second, the FBI withholds ‘evidentiary and investigative materials,’ including ‘copies of records or evidence[ ] and derivative communications discussing or incorporating evidence.’”  “The FBI divides ‘evidentiary and investigate materials’ into two functional categories:  ‘information concerning physical and documentary evidence’ (descriptions of evidence), which ‘may include . . . records obtained through or summarizing information gathered through searches, seizures, [interviews], and any other law enforcement [or] intelligence gathering activities,’ and ‘exchange of information between various law enforcement agencies,’ (information exchange) which includes ‘records documenting and detailing the exchange of information among other law enforcement partners.’”  The court finds that “[a]lthough supporting the categorical withholding of (1) reporting communications, (2) administrative instructions, and (3) descriptions of evidence, [defendant’s] declaration fails to demonstrate how the information-exchange category warrants withholding under exemption 7(A).”  “The declaration claims that the release of any document in this category ‘will disclose investigative information’ and might subject a witness or victim to ‘harassment [or] intimidation.’”  “But this justification appears overbroad because, unlike the other categories, the FBI fails to define the information-exchange category ‘functionally.’”  “In other words, the FBI fails to connect the asserted harm – disclosure of information about ‘subjects, suspects, or other individuals of potentially investigative interest’ – to the definition of the information-exchange category – any communication from, to, or between and FBI agent and an agent of another law enforcement agency.”  “Of course, most of these communications likely discuss information that, if disclosed, would harm an investigation.”  “But the FBI fails to demonstrate that every communication discusses protected information, and the FBI otherwise fails to limit the category to encompass only documents exchanging this protected information.”  “The FBI attempts to categorically withhold any document in which an FBI agent communicated with an agent from another law enforcement agency.”  “The FBI predicates this categorical withholding on the fact that the FBI communicated with another agency.”  “No record material explains why the disclosure of that fact – the FBI’s communicating with another agency – would so threaten to impede a pending law enforcement proceeding as to justify the categorical protection of exemption 7(A).”  “Although [defendant’s] justification supports the withholding of some information under each asserted exemption, the DOJ does not – and, without describing a single document, cannot – establish either that an underlying exemption protects from disclosure the entirety of an unstated number of responsive documents or that segregation and disclosure of the unprotected information in the unstated number of responsive documents is infeasible.”  The court holds that “DOJ preserves its right to later invoke each asserted underlying exemption, but no underlying exemption currently justifies summary judgment.”