Socolov v. DOJ, No. 19-419, 2025 U.S. Dist. LEXIS 30455 (W.D. Tex. Feb. 19, 2025) (Ezra, J.)

Socolov v. DOJ, No. 19-419, 2025 U.S. Dist. LEXIS 30455 (W.D. Tex. Feb. 19, 2025) (Ezra, J.)

Re: Requests for records concerning plaintiff’s mother

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment

• Exemption 3: “The Court finds that the FBI has carried its burden to invoke Exemption 3 under the [National Security Act].” “Defendants first argue that it may partially withhold certain pages pursuant to Section 102A(i)(1) of the National Security Act of 1947 (“NSA”), as amended by the Intelligence Reform and Terrorism Prevention Act of 2004.”  “This Act provides that the Director of National Intelligence (‘DNI’) ‘shall protect, and shall establish and enforce policies to protect, intelligent sources and methods from unauthorized disclosure.’”  “The Court finds that the FBI has carried its burden to invoke Exemption 3 under the NSA.”  “[Defendant’s] declaration . . . states that information withheld would reveal the FBI's ‘intelligence sources and methods . . . if any of the withheld information is disclosed to Plaintiff[].’”  “Plaintiff argues that the FBI relies on conclusory statements and that a simple reference to sources and methods cannot allow the FBI to carry its burden.”  “But ‘given the “greater deference afforded the Agency under the National Security Act,”’ . . . the Court is convinced that the FBI has met its burden . . . .”
  
  “Pursuant to Exemption 3, Defendants also maintain they can withhold Federal Grand Jury (“FGI”) information pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure.”  “The Court finds this exemption is also properly invoked.”  “Rule 6(e) bars disclosure of matters before a grand jury.”  “‘[W]hen combined with . . . Exemption 3, [it] prohibits the disclosure of certain grand jury matters even in the face of a valid FOIA request.’”  “In this case, the FBI has adequately explained that the withheld grand jury materials fall within Rule 6(e)’s protections.”  “It explains that records responsive to Plaintiff's request reveal information about one or more federal grand juries empaneled in relation to the investigation at issue and were also clearly marked on the face of the documents relating to a federal grand jury.”  “[Defendant] explains that the material withheld consists of ‘information concerning the FGJ subpoenas and returns, including summaries and/or analysis of the information subpoenaed or returned pursuant to FGJ subpoena.’” “‘This information reveals the identities of witnesses and producing parties and the sources of information relied on to develop the facts of the grand jury investigation.’”  “This is information protected by Rule 6(e).”
   
• Exemption 5, “Inter-Agency or Intra-Agency” Threshold:  The court relates that “Plaintiff does not appear to dispute that the documents in question as to Exemption 5 qualify as inter-agency or intra-agency memoranda.”  “Thus, the Court ‘will assume without deciding that they are such memoranda’ and proceed to considering whether they qualify for any of the three privileges.”
   
• Exemption 5, Attorney-Client Privilege:  The court relates that “[t]he FBI asserted the attorney-client privilege to withhold confidential communications between DOJ counsel and FBI employees that seek or provide legal advice.”  “Specifically, [defendant] declares that ‘the FBI withheld information in an internal memorandum where an Assistant United States Attorney is providing insights into assigned judges’ background, judicial temperament, and legal tendencies, critical for formulating effective legal strategies in the client’s cases.’” “[Defendant] states that this communication was made in confidence, not shared to individuals outside the attorney-client relationship, and were made for the purpose of securing legal assistance or advice to government legal positions.”  “With these descriptions, [the court finds that] the FBI has provided enough information to show that the material is properly withheld under the attorney-client privilege.”  “Furthermore, [defendant’s declarant] stated that ‘[t]he FBI segregated non-privileged information, whenever possible, and only withheld such material when it found it was inextricably intertwined with privileged information.’”  “Thus, the Court will grant Defendants summary judgment as to the communication described above.”
   
• Exemption 5, Deliberative Process Privilege:  “[T]he Court concludes that the FBI has not met its burden of showing that the material is properly withheld under the deliberative process privilege.” The court relates that “[defendant] declares that the FBI relied on the exemption and the deliberative process privilege ‘to withhold deliberative information located within FOIA processing records,’ and that ‘[t]hese intra-agency communications (case notes, search slips, and internal FOIA processing documents) contain information that is clearly pre-decisional because it pertains to deliberations on how best to respond to FOIA requests.’”  “He states that ‘[t]hese deliberations include FBI staff providing advice, asking questions within the agency, proposing actions, and/or deliberating to determine a final decision and/or course of action when processing FOIA requests,’ and ‘[t]he withheld information precedes the final agency decisions.’”  “Additionally, [defendant] declares that disclosure of the protected information would ‘lay bare the FBI’s deliberative process, as it would reveal internal discussions and information FBI personnel thought were pertinent to their analysis, as well as their compilation and sorting of facts.’”  “Among others, [defendant] states that ‘[t]his material was used in reaching final decisions, or developing potential final decisions, regarding the FBI’s formulation of proper responses to FOIA requests,’ and that ‘[t]he reasonably foreseeable harm in disclosure would be the curtailment of proper deliberations during the processing of FOIA requests and public confusion as to the FBI’s final decisions.’”
  
  “Plaintiff asserts first that the Vaughn index in this case is insufficient to assess such privilege and lacks reasonably specific detail to demonstrate that the information withheld falls into this category.”  “Additionally, Plaintiff contends that Defendants have failed in both the Vaughn index and their declarations to provide minimal information necessary to make a determination as to the applicability of the deliberative process privilege.”  “The Court agrees with Plaintiff regarding the deliberative process privilege.  Defendants’ representations in the Vaughn index and the declarations are not sufficient to assess whether this exemption is applicable to the withheld documents.”  “Here, [defendant’s] declaration vaguely asserts explanations which sound like there are multiple sub-decisions involved – for example, case notes, search slips, and internal FOIA processing, and how those documents pertain to FBI staff providing advice, asking questions within the agency, proposing actions, and/or deliberating to determine a final decision and/or course of action when processing FOIA requests – each ‘with a distinct deliberative process’ that the FBI bears the burden of identifying.”  “Furthermore, the document ‘descriptions are too vague for the Court to discern the function and significance of the documents in the agency’s decisionmaking process.’”  “Additionally, the FBI has not clearly indicated who drafted the documents in question and who received them.”
   
• Exemption 6; Exemption 7(C):  The court relates that, first, “[u]nder these exemptions, the FBI withheld certain information about specific individuals, such as the individual’s name or other identifying information, that the FBI contends would shed light on the FBI's performance of its mission to protect and defend the United States against terrorism and foreign intelligence threats and espionage and to uphold the Constitution of the United States.”  “This did not include withholding names of any high-ranking FBI officials in policy-making positions or individuals in public positions as the FBI does not consider these individuals to have privacy rights while acting in their official capacity.”  “Additionally, [defendant] also states that the FBI complied with its policies for determining whether privacy concerns were obviated by the death of the individual.”  This information includes “(1) third parties merely mentioned; (2) FBI Special Agents and professional staff; (3) third parties of investigative interest; (4) third parties who provided information; and (5) non-FBI federal government personnel.” [T]he Court agrees with Defendants that Exemptions 6 and 7(C) justify these withholdings [for living individuals].”  “The Court finds these individuals have personal privacy interests in preventing the public disclosure of their information recognizable under Exemptions 6 and 7(C).”  “First, courts have recognized that ‘persons who are not the subjects of the investigation may nonetheless have their privacy invaded by having their identities and information about them revealed in connection with the investigation.’” “Plaintiff did not fully address the public interests under this analysis or allege that a public interest outweighed any living individuals’ privacy interests.”  “Thus, as the party with the burden to establish a countervailing public interest, the Court finds Plaintiff has not satisfied this burden.”  “Further, given the amount of weight provided to the protection of third-party information contained in law enforcement records, . . . the Court finds that any potentially relevant public interest does not outweigh the privacy interests of any living individuals under the circumstances.”
  
  “Regarding the release of information pertaining to deceased individuals,” the court finds that “it is clear that if the FBI was attempting to apply the Exemptions . . . to protect death-scene photographs or the autopsy report of the FBI Special Agents or its Professional Staff, or the third parties merely mentioned, the law would arguably support withholding that information based on the privacy interests of any of the decedents’ surviving family members.”  “However, that is not what the FBI withheld here.”  “At this stage of the proceedings, based on the declarations and Vaughn index provided as evidence, the Court is not persuaded by the FBI’s argument that any of the deceased individuals [about] whom information has been withheld pursuant to Exemptions 6 and 7(C) have a privacy interest in withholding the information contained in the requested documents.” “Furthermore, Defendants cite no case law for the proposition that survivors of the deceased have a privacy interest in information in the withheld documents.”  “And, preventing the public from knowing a deceased individuals’ involvement in an investigation from the 1940s is not comparable to releasing an autopsy report or photographs from their death.”  “To withhold information under Exemptions 6 and 7(C), the agency must demonstrate a privacy interest that might b[e] invaded by disclosure.”  “The mere possibility that a privacy interest may be invaded is not enough.”  “The FBI has not satisfied its burden of showing more than a de minimis privacy interest that would justify withholding the requested information pertaining to its two categories of information as to FBI Special Agents or its Professional Staff, or the third parties merely mentioned under Exemptions 6 and 7(C).”  “Defendants’ motion for summary judgment on this assertion of privilege will therefore be denied, and to the extent that these withholdings are not otherwise covered by some other exemption, to withhold them the FBI must provide a more detailed declaration regarding disclosure of deceased individuals’ names or other identifying information or an updated Vaughn index alongside a renewed motion for summary judgment.”
   
• Exemption 7(D):  “The Court will . . . grant summary judgment in favor of Defendants as to Exemption 7(D).” “Under this exemption, [defendant] declares that it withheld information regarding numerous confidential sources that report to the FBI on a regular basis under either express or implied assurances of confidentiality.”  “The FBI explains that ‘these sources are considered to be confidential because they furnish information only with the understanding that their identities and the information they provided will not be divulged outside the FBI,’ and that ‘[i]nformation provided by these sources is singular in nature, and if released, could reveal their identities.’”  “The FBI contends that the ‘release of a source’s identity would forever eliminate that source as a future means of obtaining information.’”  “Non-disclosure of all this is justified, according to [defendant], because releasing it would have a ‘chilling effect on the activities and cooperation of other sources’ and ‘seriously impair the FBI's effectiveness in assisting with or participating in future investigations with the foreign government agencies.’”  “Regarding the FBI’s withholding of identifying information of individuals who provided information under an express assurance of confidentiality, the FBI has met its burden for Exemption 7(D).”  “Given Defendants above explanations, in combination with [defendant’s] declaration, the Court finds that Defendants have reasonably demonstrated how the information above plausibly falls within Exemption 7(D).”  “The names and identifying information of third parties who received express assurances of confidentiality, as well as the information these third parties disclosed, falls well within the field of the exception.”  “Despite Plaintiff’s claims to the contrary, Defendants’ explanations show that disclosure ‘could reasonably be expected to disclose the identity of a confidential source.’”  “Indeed, courts have found nearly identical explanations sufficient.”  “Further, the FBI . . . has alleged that a foreign government provided information under an express assurance of confidentiality and describes how the public disclosure of information would hinder its ability to properly seek cooperation from other sources and gather confidential information.” “Courts have upheld identical claims under Exemption 7(D) in the past.”
  
  “The FBI also withheld from disclosure: (1) the names and other identifying information of individuals, (2) information from state or local law enforcement agencies, and (3) names, identifying date, and information provided by employees of commercial and financial institutions, who provided information under implied assurances of confidentiality.”  “The FBI contends that an implied assurance of confidentiality exists because (1) these ‘individuals conveyed critical information regarding criminal acts,’ and ‘were in a position to have ready access to and/or knowledge about investigative targets and others involved in espionage,’ and ‘[s]uch access exposes them to potentially significant harms should their association and cooperation with the FBI be publicly disclosed’; (2) regarding law enforcement agencies, information and assistance provided would disclose their agency's law enforcement techniques, or details about law enforcement techniques, that are not publicly known; and (3) regarding commercial and financial institutions, they ‘frequently provided sensitive information concerning the activities of subjects who were of investigative interest to the FBI under an implied understanding of confidentiality,’ and they ‘were in a position to have ready access to and/or knowledge about investigative targets and others involved in espionage,’ and ‘[s]uch access exposes them to potentially significant harms should their association and cooperation with the FBI be publicly disclosed.’”  “Given the FBI’s reasoning above, the Court finds that Defendants properly invoked Exemption 7(D) in withholding this information from disclosure.”  “The Court finds that it is reasonable to infer an assurance of confidentiality given the circumstances described.”
   
• Exemption 7(E):  The court relates that “[p]ursuant to this exemption, the FBI withheld documents relating to:  (1) specific law enforcement techniques used to conduct national security investigations; (2) FBI secure fax and telephone numbers; (3) collection and analysis of information; (4) database identities; and (5) investigative focus of specific investigations.”  “Plaintiff contends that Defendants improperly invoke Exemption 7(E) to redact and withhold information about law enforcement techniques that either are now commonly known or were obtained by illegal means.”  “For each category, the FBI has explained how the release of the information ‘logically . . . might create a risk of circumvention of the law.’”  “For example, the FBI asserts that releasing secure fax and telephone numbers ‘would provide criminals with specific targets for attacks on FBI communications through “spoofing” or other illegal schemes.’”  “And ‘[r]eleasing this information poses substantial risks to the FBI’s ability to carry out its mission effectively, could potentially decrease the FBI’s effectiveness, and could enable criminals to circumvent the law.’” “Additionally, ‘[r]eleasing internal FOIA processing documents may inadvertently disclose sensitive law enforcement techniques and procedures through the content contained within these documents.’”  “The FBI further explains that ‘[r]eleasing the identities of [] databases would give criminals insight into the available tools and resources the FBI uses to conduct criminal and national security investigations (i.e., the scope of information stored within the databases, how the FBI uses the databases to support its investigations, the types of information most valued by the FBI for particular investigations, and vulnerabilities of the databases).’” “Finally, the FBI maintains that releasing the investigative focus of specific investigations, including FBI counterintelligence and espionage investigations ‘would alert them to the FBI’s interest in their activities, allowing them to take active measures to conceal/destroy evidence or modify their behavior to avoid future investigative scrutiny.’”  “As asserted by Defendants, the Court finds that they have met their burden of establishing that the redacted and withheld investigative methods in the challenged exhibits are of an exceptionally sensitive nature, and that delving further into their details or providing additional information would inevitably expose their fundamental essence.”  “Such information includes the FBI’s specific utilization of these techniques in both criminal and national security investigations, including when and how they are employed.”  “Because the text of FOIA Exemption 7(E) exempts from disclosure records that ‘could reasonably be expected to risk circumvention of the law,’ the FBI ‘does not have to prove that circumvention is a necessary result.’”  “Instead, the FBI need only show that there is a chance of a reasonably expected risk that the law would be circumvented if the information withheld is disclosed.” “Here, the FBI has shown that to the Court.” “Accordingly, the Court finds that the FBI properly withheld any information that it may possess pursuant to Exemption 7(E).”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court holds that “[t]he FBI has met its burden in part.”  “It attests that it ‘processed all records responsive to Plaintiff’s requests to achieve maximum disclosure consistent with the access provisions of the FOIA,’ and that ‘[e]very effort was made to provide Plaintiff with all information in the public domain and with all reasonably segregable, non-exempt information.’”  “According to [defendant], ‘[t]he FBI did not withhold any reasonably segregable, nonexempt portions from Plaintiff.’”  “The Court is persuaded that this explanation, in combination with the descriptions of the withholdings and redactions in the FBI’s Vaughn index . . . entitles the FBI to the presumption for documents that the Court found properly withheld and redacted above.”  “As for documents withheld or containing redactions under Exemptions 5’s deliberative process privilege and Exemptions 6 and 7(C), as discussed above, the Court will reserve ruling on segregability until the FBI files supplemental declarations properly justifying their redactions and withholdings.” “Thus, the Court will grant the FBI summary judgment in part as to the segregability requirement.”
   
• Litigation Considerations, In Camera Inspection:  The court relates that “[i]n her response to the motion for summary judgment, Plaintiff seeks reconsideration of the Court’s prior October 5, 2023 Order on the basis that the Court did not perform an in camera review and simply accepted Defendants’ arguments and declarations without reviewing what had actually been redacted.”  “The Court will not grant reconsideration of that Order given that the time to challenge that Order has long passed.”  “Still, given that the Court will allow Defendants’ leave to file a supplemental Vaughn index and declarations to address the deficiencies discussed above in Exemptions 5’s deliberative process privilege and Exemptions 6 and 7(C), the Court finds that an in camera review of those portions of the withheld documents in these exemptions will be proper for the Court to adjudicate the remaining issues in this case.”  “And, although the Court will not grant reconsideration of its prior Order, should Plaintiff seek specific in camera review of any challenged document from that Order, she should specifically indicate such to the Court in a motion, limiting the request to the exact documents she seeks.”