Yunes v. DOJ, No. 14-1397, 2016 WL 4506971 (D.D.C. Aug. 26, 2016) (Bates, J.)
Re: Request for records concerning plaintiff
Disposition: Granting in part and denying in part defendants' motions for summary judgment; denying plaintiff's motion for summary judgment
- Litigation Considerations, Adequacy of Search: The court finds that the State Department "lists the search terms used and describes the type of search performed – of paper and email records." "And it goes further to identify by title the Department employees . . . who conducted the search." "[The State Department] also describes how the searched files are organized[.]" The court finds that the State Department is "entitled to summary judgment on this point."
- Exemption 7(E): "[T]he Court concludes that the FBI has established the correctness of its 7(E) claims and is entitled to summary judgment." The court agrees with defendant that "the [Organized Crime Drug Enforcement Task Forces ("OCDETF") Investigation Initiation Forms] 'serve as a guideline/manual type of record – a blueprint to be followed in all OCDETF cases" and, "[f]or this reason, . . . '[i]f released, these forms provide a roadmap on law enforcement techniques to be circumvented or evaded, and may function as an organizational tool for criminal enterprises.'" "These representations are sufficient for the Court to discern the substance of the withheld form and they demonstrate logically how the release of that information might create a risk of circumvention of the law."
As to the FBI's withholding of "specific methodology – the details of which have not been publicly disclosed – for the FBI to request access to and electronically receive [Bank Secrecy Act] information from [Financial Crimes Enforcement Network][,]" the court finds that the FBI's "assert[ion] that 'public disclosure would provide adversaries with the information necessary to develop methods to disrupt transmission and gain unauthorized access to the information'" "is sufficient to justify the use of Exemption 7(E) for the information withheld to protect the non-public methodology." However, the court also finds that "the FBI has not claimed that Exemption 7(E) was used to withhold these pages in full." "Indeed, the Court has a hard time imagining how the full page – as opposed to say, a header or footer – could communicate the electronic methodology used by these agencies." "If the FBI intended to justify the full withholding of these pages under Exemption 7(E), they are free to further explain that in a renewed motion."
- Exemption 3: "[T]he Court finds it is inappropriate to grant summary judgment to either party." "Rather, the Court will give the FBI another chance to explain why these pages can be withheld." The court relates that the FBI relies on "Exemption 3 . . . in conjunction with the Bank Secrecy Act [("BSA")]." "The Court finds that the FBI's invocation of Exemption 3 is insufficient here because it does not specify that the withheld information is derived from BSA reports or records of reports." "The fact that the information was 'obtained through the BSA' does not affirmatively prove that the information is derived from BSA reports." "But nor has such an inference been precluded."
- Litigation Considerations, In Camera Inspection; Exemptions 1, 3 & 7(E): "The Court will grant the DOJ leave to file [the FBI's] third declaration and related attachments ex parte and in camera based in part on the FBI's failure to describe [certain] withheld documents in sufficient detail publicly and the related explanation that it could not do so without revealing the information it seeks to protect from disclosure." Also, "[h]aving considered the in camera submissions, the Court concludes that these documents are properly withheld or redacted pursuant to FOIA Exemptions 1, 3, and 7(E)." "This decision reflects the deferential standard applied by the D.C. Circuit for an agency withholding under Exemption 7(E) and citing national security concerns." "The DOJ's in camera submissions contain detailed descriptions of the withheld information and explain why the material cannot be further discussed on the public record without revealing information that the government is authorized to withhold from public disclosure."
- Litigation Considerations, "Reasonably Segregable" Requirements: "[T]he Court is satisfied that the FBI released all segregable documents, while reserving judgment on the [Financial Crimes Enforcement Network] report at this time." The court relates that "[t]he pages withheld in part confirm a detailed, line-by-line assessment of which exemptions applied to each piece of material" and "[defendant] concludes that no further non-exempt information could be segregated and released without revealing exempt information." The court also notes that "[plaintiff] does not challenge this contention[.]"