Touarsi v. DOJ, No. 13-01105, 2015 WL 303637 (D.D.C. Jan. 23, 2015) (Cooper, J.)

Touarsi v. DOJ, No. 13-01105, 2015 WL 303637 (D.D.C. Jan. 23, 2015) (Cooper, J.)

Re: Request for records concerning plaintiff's arrest and detention

Disposition: Granting defendant's motion for summary judgment

• Exemption 1:  The court holds that "the FBI has adequately justified its withholding of records under Exemption 1."  The court relates that "[defendant's] declarant, . . . who is an original classifying authority, states that the FBI withheld 'detailed intelligence activity information gathered or compiled by the FBI on a specific individual or organization of national security interest;' the 'focus and character or title of a case;' and 'FBI file numbers assigned to specific intelligence activities, including channelization and dissemination instructions.''  "The government has also submitted materials in camera that provide further justifications for its withholdings."  "Having reviewed these materials, the Court agrees that the only additional information the FBI could plausibly provide would disclose the very intelligence methods the government seeks to protect."
   
• Exemption 5:  The court finds that "[plaintiff] cannot obtain otherwise-privileged records unless he provides actual evidence that could raise a reasonable inference of wrongdoing."  The court relates that "[plaintiff] claims that because he was never prosecuted, his detention and investigation necessarily were improper."  "But [the court finds that] the government may have decided not to prosecute [plaintiff] for any number of reasons, and its decision is not evidence that it lacked a basis to investigate him in the first instance."
   
• Exemption 5, Attorney-Client Privilege:  "[T]he Court will not upset the government's assertions of the attorney-client privilege."  The court relates that "DOJ has asserted the attorney-client privilege to withhold legal advice from FBI attorneys to government agents and employees concerning investigation strategies and a potential prosecution."  The court finds that "this type of information is protected by the privilege."  The court notes that "the communications 'were made in confidence [and] were not shared with or circulated to individuals outside the attorney-client relationship'" and "that the communications related to a specific investigation and potential prosecution."
   
• Exemption 5, Deliberative Process Privilege:  "[T]he Court determines that CBP has adequately justified withholding [an] officer's notes under the deliberative process privilege."  In response to plaintiff's "conten[tion] that the officer did not make deliberative decisions because processing travelers at the border is a routine event," the court finds that "[t]he deliberative process privilege . . . 'protect[s] materials that concern individualized decisionmaking' as well as 'the development of generally applicable policy' and thus protects routine decisionmaking."
   
• Exemptions 6 and 7(C):  The court holds that "[plaintiff] . . . has failed to demonstrate any exceptional circumstance warranting the release of private information that is ordinarily withheld in FOIA cases."  Specifically, the court finds that "[r]eciting FOIA's general goal of government oversight is insufficient to obtain the names of individuals contained in law enforcement records."
   
• Exemption 7(D):  The court finds that defendant's use of Exemption 7(D) was proper.  The court relates that "[t]he FBI withheld the permanent 'symbol designations' of, and the information provided by, informants who it contends were given an express assurance of confidentiality."  The court notes that defendant "explains that the FBI only assigns symbol designations to informants who are given express assurances of confidentiality, and that each of these informants has been assigned such a designation."  The court holds that "[t]his declaration is sufficient to establish that each source is confidential."
   
• Exemption 7(E):  The court holds that defendant's "descriptions adequately explain that the information withheld constitutes law enforcement techniques and methods and how revealing this information could reduce their effectiveness."  The court relates that "[t]he FBI withheld techniques and procedures used in investigating [plaintiff] because, according to the Bureau, revealing this information would disclose what circumstances trigger the Bureau's use of a particular investigatory technique."  "It also withheld the locations and identities of FBI units connected to particular investigations under the theory that revealing this information would enable individuals to determine where the Bureau has directed its investigatory resources."  "CBP withheld computer codes and designations from its records because release of this information would make it easier for individuals to gain unauthorized access to, and manipulate, CBP electronic files."  "And both agencies, along with ICE, withheld search results from various electronic databases used in investigations, contending that revealing the manner in which they are searched would enable individuals to circumvent identification."
   
• Waiver:  The court holds that plaintiff "has not met his burden to point to specific information to which the public domain exemption applies."  Specifically, the court finds that "[plaintiff] does not provide . . . newspaper articles [that plaintiff alleges mention certain names at issue], describe them, or otherwise demonstrate that the suspects' names have been officially acknowledged by the government."
   
• Litigation Considerations, "Reasonably Segregable" Requirement:  The court holds that defendant's "declaration is sufficient to satisfy the Bureau's obligation to demonstrate that it reasonably segregated all non-exempt information" because "similarly detailed declarations providing that an agency conducted a page-by-page search are regularly accepted in this Circuit."
   
• Litigation Considerations:  The court rejects plaintiff's request for expungement and holds that "[c]ompelling disclosure is the only explicitly available remedy under FOIA, 5 U.S.C. § 552(a)(4)(B), and [plaintiff] cites no case where a court has expunged records as a remedy for the government's misapplication of FOIA exemptions."
   
• Attorney Fees:  The court relates that "[plaintiff] requests attorney's fees because DOJ apparently did not search an electronic surveillance database in response to [plaintiff's] FOIA request until after he filed suit."  "The Court will deny this request."  "A plaintiff may not recover attorney's fees in a FOIA action merely because the agency released additional documents after the plaintiff filed a complaint in federal court."