Wilson v. FBI, No 22-3062, 2025 WL 522019 (D.D.C. Feb. 18, 2025) (Berman Jackson, J.)

Wilson v. FBI, No 22-3062, 2025 WL 522019 (D.D.C. Feb. 18, 2025) (Berman Jackson, J.)

Re: Request for records concerning plaintiff

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Litigation Considerations, Evidentiary Showing, Adequacy of Search; Procedural Requirements, Searching for Responsive Records:  “[T]he Court finds that FBI has met its burden to establish that its search for records was adequate.”  The court relates that, “[i]n response to plaintiff’s FOIA request, the FBI searched the Sentinel indices (as well as indices contained in Automated Case Management, the system that Sentinel replaced), for ‘[plaintiff’s first and last name]’ and ‘[plaintiff’s last and first name].’”  The court finds that “Plaintiff’s [first] argument is not persuasive.”  “Plaintiff’s declarant does not explain why it is necessary to include narrower requests within the broad search for plaintiff’s first and last name, particularly given Sentinel’s ability to search for variations on a name.”      “To the contrary, in [its] third declaration, [defendant] makes clear that when a first and last name are used to search Sentinel, all possible middle names are searched as well.”  Similarly, the court finds that “plaintiff’s [second] argument is not persuasive.”  “The Third . . . Declaration makes clear that searches in the Sentinel system also query indices residing in [the FBI’s Electronic Surveillance database (“ELSUR”)], . . . meaning that the fact that ELSUR was not searched directly is immaterial; the Sentinel search would also have yielded responsive records present in ELSUR.”  Finally, “with respect to [the FBI’s DELTA database (used for Confidential Human Source management)], defendant’s declarant avers that, notwithstanding its initial decision not to search the database, it later conducted a search of DELTA ‘for variations of Plaintiff’s name, his date of birth, and his email address and located no responsive records’ in response to separate litigation in the Southern District of New York.”      “The dispute is therefore moot.”
   
• Exemption 7, Threshold:  The court relates that “Defendant’s declarant avers that the agency ‘is the primary investigative agency of the federal government’ and that the responsive records withheld under Exemptions 6 and 7(C) ‘were compiled in furtherance of [defendant’s] investigation of Plaintiff’s complaint to the Consulate-General of Australia,’ in which he alleged misconduct by FBI employees.”  “The records were therefore compiled by the FBI in furtherance of its federal law enforcement mission and qualify as law enforcement records for the purposes of Exemption 7(C).
   
• Exemption 6; Exemption 7(C):  The court finds that “because Exemption 7(C) protects a wider swath of information from disclosure than Exemption 6, courts need only analyze whether information was properly withheld under Exemption 7(C) when a defendant properly invokes both Exemptions 6 and 7(C).”  The court then finds that “Defendant invokes Exemption 7(C) to justify withholding the names and identifying information of its employees, other government personnel who assisted defendant in its investigation, and third parties in records responsive to plaintiff’s request.”      “Plaintiff does not challenge defendant’s invocation of the Exemption with respect to this material.”      “Absent an identifiable public interest, the asserted ‘privacy interest . . . prevails because “something, even a modest privacy interest, outweighs nothing every time.”’”
   
• Exemption 7(E):  “[T]he Court finds that defendant properly withheld records pursuant to [Exemption 7(E)].”  The court relates that, “[w]ith respect to the Exemption 7(E) documents, defendant withheld an internal email address, non-public intranet addresses, and non-public phone numbers.”  “According to defendant’s expert, such information could be used to breach defendant’s information technology systems and gain unauthorized access.”  The court finds that “plaintiff does not challenge defendant’s withholding of this information . . . and courts have repeatedly ‘recognized the risk of a cyber-attack . . . as valid grounds for withholding under Exemption 7(E).’”
   
• Exemption 1, Glomar Response; Exemption 3:      “[T]he Court finds that defendant’s invocation of a Glomar response with respect to national security and intelligence records was proper.”  “Defendant asserts a Glomar response for ‘records that – if their existence or non-existence was acknowledged – could harm United States national security or the Bureau’s efforts to gather foreign intelligence[]’ . . . .”  Regarding Exemption 1, the court finds that “[the] provisions make clear that the mere existence or non-existence of certain records is protected under E.O. 13,526, and thus that the existence or non-existence of those records is information kept secret under ‘criteria established by an Executive order,’ as Exemption 1 requires.”  Regarding Exemption 3, “Defendant argues that the National Security Act, 50 U.S.C. § 3024(i)(1), supports its Exemption 3 Glomar response.”  “Under the National Security Act, the Director of National Intelligence (‘DNI’) is obligated to ‘protect intelligence sources and methods from unauthorized disclosure.’”  “To fulfill that duty, the DNI has promulgated Intelligence Community Directive 700, which provides that the FBI, among other agencies, will protect ‘national intelligence and intelligence sources, methods and activities from unauthorized disclosures.’”      “According to defendant, the disclosure of the existence or non-existence of certain records would result in defendant’s failing to protect national intelligence, and ‘such information is therefore properly withheld pursuant to the nondiscretionary prong of Exemption 3.’”
   
• Exemption 3:  The court relates that “Defendant also issued an Exemption 3 Glomar response regarding records that would identify individuals in the Witness Security Program.”  “Defendant relies on 18 U.S.C. § 3521(b)(1)(G), which prohibits the disclosure of ‘any information concerning the Witness Security Program or its participants.’”      “Defendant argues that a Glomar response is proper because ‘[t]o publicly [identify] the existence of witness protection in the context of a particular request would indicate the presence of Witness [Security] Program information in responsive records,’ which is, in and of itself, information concerning the Witness Security Program.”  “Plaintiff’s declarant disputes this, arguing that ‘the records requested . . . have no nexus to the Witness Security Program.’”  “But once more, she provides no factual support for this statement; such ‘conclusory’ and ‘self-serving’ averments are ‘woefully inadequate to create a genuine dispute of fact.’”  “Further, defendant’s declarant explains that the FBI ‘consistently neither confirms nor denies the existence of Witness Security Program records, because to be credible and effective, the FBI must use this Glomar response in all such cases regardless of whether responsive records actually exist or not.’”  “To do otherwise would create a pattern of Glomar responses and non-responses that provide information on defendant’s human sources, in violation of 18 U.S.C. § 3521(b)(1)(G).”
   
• Exemption 7, Threshold; Exemption 7(E):      The court relates that “Defendant asserts a Glomar response under Exemption 7(E) regarding records that would identify individuals on a ‘watch list.’”  “Defendant argues that disclosing the existence or non-existence of records pertaining to a FOIA requestor’s presence on a watch list is sufficient to trigger the protections of Exemption 7(E).”  “It contends that the knowledge that records exist can be used to deduce one’s presence on the watchlist itself, which in turn discloses the ‘techniques and procedures’ that defendant uses for its law enforcement investigations.”  “According to defendant, this is because ‘if an individual knows who is or is not on a watchlist, they can understand what types of behavior are pertinent to placement on a watch list.’”
   
• Exemption 7(D); Exemption 7(E); Exemption 7(F):  The court relates that, “[f]inally, defendant asserts a Glomar response under Exemptions 7(D), 7(E), and 7(F) for ‘records concerning confidential sources or [defendant’s] confidential human source program.’”  “Defendant explains that Exemption 7(D) warrants a Glomar response because the disclosure of existence and non-existence of records would ‘create a pattern whereby criminals could easily discern who is and is not an FBI [confidential human source].’”  “Defendant also argues, as it did with respect to watch lists, that a Glomar under Exemption 7(E) is warranted because the existence and non-existence of records about confidential sources could reveal the agency’s ‘non-public investigative strategies.’”      "Finally, defendant argues that Exemption 7(F) warrants a Glomar response given the need to protect identifying information about confidential sources and avoid responses that ‘would endanger the life or physical safety of a [confidential source].’”  The court finds that “Plaintiff does not address these arguments directly.”      “Rather, he insists that defendant’s use of a ‘standard Glomar response’ is too broad and ‘stands counter to the language and spirit of FOIA.’”  “But since the revelations implicit in more specific responses are exactly what the court-approved Glomar response was designed to avoid, it is essential that defendant employs a standard response when a request touches upon an area where Glomar is applicable.”  “Plaintiff cites no authority holding otherwise, but instead relies solely on his declarant’s statement that ‘identifying and/or singular information could be withheld from production or redacted’ and defendant is simply ‘using Glomar as an excuse to not produce the records’ in this case.”   “Such conclusory and speculative assertions cannot support a grant of summary judgment, and the Court finds that defendant’s Glomar response is proper to protect the identify and physical safety of confidential sources.”
  
  “Plaintiff argues that defendant’s Glomar response regarding national security records is insufficient because ‘there are no national security issues presented’ in plaintiff’s FOIA request.”  “He points out that the events described in his FOIA requests are over twenty years old, so it is unlikely there are ongoing law enforcement activities related to the documents he requested, and the statute of limitations has run out on any crimes that could be currently under investigation.”  “These facts do not support a conclusion that there are no national security issues presented in his FOIA request.”  “Plaintiff’s declarant offers no supporting justification for her contention that law enforcement’s interest in plaintiff was limited to a period of twenty to thirty years ago, and plaintiff's FOIA request was not limited to activities occurring at that time.”  “Moreover, even if there are no records concerning plaintiff other than those from twenty to thirty years ago, the Second . . . Deceleration sets forth the rationale for shielding records related to national security investigations that are no longer active.”  “For one, ‘[o]nce an intelligence activity or method (or the fact of its use or non-use in a certain situation) is discovered, its continued successful use is seriously jeopardized.’”  “In addition, for intelligence sources, ‘disclosure can result in threats to the source’s life and safety, as well as that of the source's family and others close to the source.’”  “These potential harms remain, notwithstanding the statute of limitations for any criminal wrongdoing.”
  
  “Plaintiff argues that defendant’s Glomar response is insufficient for two reasons.”  “First, he argues that defendant has not shown that the records in question are ‘law enforcement records’ as required to trigger Exemption 7(E) protections.” “Second, he argues that because the records released pursuant to his FOIA request precede the creation of the watch list and bear circumstantial evidence of being unrelated to the watch list, the likelihood that responsive records concern the watch list is low.” The court finds that “[b]oth of plaintiff’s arguments are unavailing.”  “Defendant avers that ‘records concerning terrorist watchlists were compiled and created in furtherance of [defendant’s] law enforcement and national security functions’ because ‘information contained on terrorist watchlists is used to enable the FBI to perform its core law enforcement and national security related duties.’”  “Thus, the records for which the Glomar response is invoked are law enforcement records for the purpose of Exemption 7(E).”  “Second, plaintiff’s argument that the released records show little evidence of being connected to the watch list, and that this supports the inference that any further records must be unrelated to the watch list, fails.” “At this stage of litigation, the Court is not required to draw inferences in plaintiff’s favor, and it is entirely possible that defendant is in possession of watch list records unrelated to whatever records have already released to plaintiff.”