Zaid v. DOJ, Nos. 21-1130, 21-2625, 22-1602, 2023 WL 4351401 (D. Md. July 5, 2023) (Chasanow, J.)

Zaid v. DOJ, Nos. 21-1130, 21-2625, 22-1602, 2023 WL 4351401 (D. Md. July 5, 2023) (Chasanow, J.)

Re:  Request for records concerning plaintiff’s client

Disposition:  Granting DOJ’s motion for summary judgment; granting in part and denying in part DHS’s motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that “summary judgment will not be granted in favor of DHS on this ground.”  “Plaintiff submitted his FOIA request on March 4, 2022, and on April 29, 2022, DHS transferred his FOIA request to ICE.”  “On May 4, 2022, ICE acknowledged receipt of the request, and on May 13, 2022, determined that the request was too broad to conduct a ‘thorough and adequate search.’”  “It then requested clarification from Plaintiff and advised him that ‘if a response is not received within 30 days, [his] request will be administratively closed.’”  “Plaintiff did not respond to this request and filed suit on June 29, 2022, and ICE closed Plaintiff’s FOIA request on that same date.”  “Under these circumstances, DHS has not shown that Plaintiff was required to exhaust any administrative remedies imposed by ICE.”  “Here, ICE made its determination that it could not proceed with Plaintiff’s request on May 13, 2022; it did not, however, notify him that this was an adverse determination and if so, of his right to appeal this determination.”  “Accordingly, Defendant DHS has not shown that it would be proper to hold Plaintiff to any administrative exhaustion requirements he was not made aware of.”

• Procedural Requirements, Proper FOIA Requests:  Responding to DHS’s not reasonably described arguments, the court finds that, “[h]ere, Plaintiff’s requests 1-4 meet the ‘reasonably describes’ requirement.”  “First, Plaintiff’s request did not use such vague words and descriptions that would prevent ICE from determining what records were being requested.”  “The request specifically requested communication between the government agencies that reference the Target IP Address or Target Website as mentioned in the memorandum opinion that he attached to his request, which was clearly related to [plaintiff’s client’s] prosecution.”  “Plaintiff also specifically pointed to pages of the opinion, provided a specific IP address, and a specific time period.”  “Defendant DHS has not clearly shown that these requests were vague or overly burdensome, and ICE had sufficient information on which to determine ‘precisely which records [were] being requested.’”  “The agency is, thus, not entitled to summary judgment as to these requests.”
  
  “On the other hand, Plaintiff’s request number 5, seeking any records referencing [“violent pornography”] is overly broad as it provides no narrowing construction or other limitation and has the potential to be overly burdensome.”  “The request would require ICE to search every possible place where any reference to [that subject] could be found, even if it has no relation to [plaintiff’s client] or his criminal investigation, which is the background on which Plaintiff has brought his FOIA requests in the first instance.”  “Accordingly, this request is overbroad as framed, and the agency is entitled to summary judgment as to it.”
   
• Procedural Requirements, Searching for Responsive Records:  The court holds that “[the United States Secret Service (“USSS”)] has demonstrated that its actions were ‘reasonably calculated to uncover all relevant documents.’”  “It conducted its search pertaining to request number 5 including various searches for the word [a term referencing “violent pornography” in] email searches, and searches of [its Field Investigative Reporting System], including searches of other names from the opinion Plaintiff attached to the request.”  The court takes note of defendant’s decision to limit the search for records responsive to that term to records that were involved in plaintiff’s client’s “investigation and prosecution.”  “Furthermore, ‘it is not necessary that a search unveil every potentially responsive or relevant document.’”  “Accordingly, USSS’ search was adequate, and DHS is entitled to summary judgment on this issue.”
  
  The court also holds that “[t]he declaration of the FBI is sufficient because it indicated where responsive documents were likely to be located and why and how the search was performed, provided the variety of search terms used, specifically used terms provided by the Plaintiff, and determined that responsive documents were not likely to be located elsewhere.”  “The FBI has shown that it made ‘a good faith effort to conduct a search . . . using methods reasonably expected to produce the information requested.’”  “There is no dispute that the FBI’s search for responsive documents was adequate.”
   
• Exemption 7(A):  The court relates that “[t]he FBI conducted a document-by-document review of the records within [plaintiff’s client’s] investigative file to confirm the applicability of exemption 7(A).”  “The FBI provides a list of the types of records located in the investigative file, along with a description of how they relate to the investigation or proceedings.”  “That list includes:  electronic communications; non-public court documents; envelopes; miscellaneous administrative documents; memoranda and correspondence; interview forms, handwritten notes, and recorded videos; computer analysis evidence response team notes, reports, logs, and other information; evidence logs; receipt of property forms; payment request forms; other investigatory documents; administrative subpoenas and subpoenaed information; FBI import forms; consent to search forms; consent to assume online identity authorization forms; foreign, other federal, state, and/or local law enforcement documents; victim information reports; photographs; and operation plans.”  “The FBI found that release of responsive records in the . . . investigative file would not only harm ongoing proceedings in [plaintiff’s client’s] case, but it would also allow third-party individuals to know prematurely the details surrounding the investigation of their criminal activities – including evidence gathered during the investigation and the identity of victims – and they could use the information to destroy evidence, create false evidence, or intimidate victims, witnesses, or others.”  “According to [the FBI], the FBI determined that ‘release of information in the records would potentially harm the government's investigative and enforcement efforts, thus reducing the likelihood of prosecution of the investigative subjects for their crimes, which involve the exploitation of children.’”  “The FBI also reviewed, document by document, each record and assigned the responsive records to functional categories.”  “Those functional categories are:  (1) administrative material, with subcategories: reporting communications and administrative instructions; and (2) evidentiary and investigative material, with subcategories: information concerning physical and documentary evidence, and records containing the exchange of information between law enforcement agencies.”  “The FBI states that the ‘administrative instructions’ subcategory includes case captions, serial numbers, identities of FBI field offices, dates of investigations, and detailed instructions designed to ensure that investigative procedures are conducted within guidelines.”  “Administrative instructions relate to investigative procedures or strategies employed in an investigation.”  “The ‘reporting communications’ subcategory of documents permit the monitoring of investigations and have detailed information about victims, third parties, and their ties to the investigation.”  “Release of this information may reveal government cooperation with other entities, the nature and scope of the investigation at issue, and various sources in the investigation, and would permit subjects to anticipate, alter, or negate evidence which would stymie enforcement efforts.”  “The information in this category is sufficient to show that release of this material would interfere with enforcement proceedings.”  “The Vaughn index identifies records to which exemption 7(A) applies as documents relating to the opening of investigations, research on individuals being investigated, affidavits in support of search warrants, electronic communications pertaining to investigations, and more.”  “[Defendant] describes this category as consisting of evidence and communications discussing evidence, including physical and documentary evidence as well as records documenting the exchange of information between the FBI and other law enforcement agencies.”  The court finds that “[t]he information provided for this category clearly demonstrates how its release would interfere with enforcement proceedings.”  “Plaintiff has not provided any evidence that contradicts the FBI’s assessment of the records or of its bad faith in withholding them.”  “Thus, contrary to Plaintiff's unsupported lamentations, the descriptions in the Vaughn index and [defendant’s] declaration are sufficient to show Defendant DOJ has properly invoked the categorical exemption of 7(A).”
   
• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations:  The court relates that “[t]he FBI asserts that it withheld information under the deliberative process privilege to protect ‘handwritten, investigative interview notes, and draft affidavits and draft pen register and trap and trace documents.’”  “Handwritten interview notes precede the final write-up of an FBI investigative form, and these notes include thoughts that are not included in the final form.”  “These notes generally include observations, facts, and impressions collected during a [Special Agent’s] interview with a subject.”  “Such notes were used in [defendant’s client’s] criminal investigation, and different strategies may be reflected in those notes.”  “Draft affidavits and draft pen register and trap and trace documents contain information obtained and analyzed by [Special Agents] throughout the investigative process, including during interviews, surveillance, and evidence collection, and they predate official affidavits or pen register and trap and trace orders.”  “They reflect the thought processes and editing of the agency and include shared inter-agency drafts where release could harm future deliberations.”  “Releasing these documents containing internal deliberations and investigative strategies could lead to the reasonably foreseeable harm of creating an unwillingness for [Special Agents] to document interviews, and it could cause public confusion where draft information not included in final decisions would be released.”  “Such non-final decisions or opinions and draft thoughts are exactly what the deliberative process privilege protects.”  “Thus, this material was properly withheld under exemption 5.”

• Exemption 5, Attorney Work-Product & Foreseeable Harm and Other Considerations:  The court relates that “[t]he FBI withheld information under the attorney work product privilege to protect draft affidavits created by attorneys and used in support of an application for a search warrant that was intended for a criminal investigation of individuals involved in potential violations of federal crimes.”  “It is reasonably foreseeable that it would interfere with the government’s ability properly to prepare its legal case theory and strategy.”  “A draft affidavit used in preparing a request for a search warrant linked to a federal criminal investigation is quintessentially related to litigation and in anticipation of trial.”  “This material was thus properly withheld under the attorney work product privilege and exemption 5.”

• Exemption 6 & Exemption 7(C):  The court holds that “the FBI’s withholdings under Exemptions 6 and 7(C) were justified.”  The court relates that “DOJ withheld names and other identifying information of individuals pursuant to these exemptions.”  “Plaintiff only contests withholding under exemptions 6 and 7(C) as to FBI special agents, local law enforcement, and non-FBI personnel, specifically those ‘officials who held a GS-14 supervisory position or local equivalent.’”  “The Vaughn index indicates that the documents withheld under these exemptions were related to a search and seizure warrant, investigative information, and information provided to the FBI.”  “DOJ asserts that the FBI [Special Agents] and local law enforcement personnel have a significant privacy interest in not having their names and personal identifiable information released in connection with these investigations.”  The court finds that “[t]he FBI [Special Agents] and local law enforcement personnel performed tasks related to conducting, supervising, maintaining the investigation, and conducting administrative activities reflected in the records requested by Plaintiff.”  “Any publicity, adverse or otherwise, could lead to negative implications for those [Special Agents] and local law enforcement personnel based on their connection with any particular investigation.”  “Disclosing the identity of the [Special Agent] or enforcement officer does not itself significantly increase the public's understanding of FBI operations and activities.”  “The rationale is similar for non-FBI personnel and federal government agencies.”  “Although Plaintiff narrowed his challenge to supervisory employees, the FBI has stated that the employees with GS-14 or GS-15 rank within the records at issue were not in public-facing positions, and their private information was likewise not disclosed.”  “Protecting the names and other personal information here outweighs the public interest where Plaintiff has offered no explanation as to how these names would reveal information about the FBI’s activities.”

• Exemption 7(D):  The court relates that “[t]he FBI states that it relied on evidence that ‘certain individuals, who provided specific and detailed information . . . either requested that their identity not be revealed or FBI investigators would have, by standard practice, expressly promised them that their identity and the information provided (outside of its investigative use) would remain confidential.’”  “The designation of these witnesses as cooperating witnesses (‘CW’) or confidential human sources (‘CHS’) would indicate an express assurance of confidentiality.”  “For certain individuals, the record also included the words ‘protect identity.’”  “As it pertains to foreign entities, the FBI states that it withheld information that was provided under an express assurance of confidentiality under long-standing confidentiality agreements, and it must abide by those requests and agreements.”  The court finds that “[b]ecause of Defendant DOJ’s use of the term ‘certain individuals,’ with no direct reference to documents and information in this case, it is not entirely clear how the individuals designated as ‘CW,’ ‘CHS,’ and ‘protect identity’ are related to this FOIA request.”  “Similarly, it was not explicitly stated how the ‘longstanding agreements’ with foreign entities applies to the requests or information requested in this case.”  “Nonetheless, in reviewing Defendant DOJ’s Vaughn index, every time an exemption under 7(D) was asserted, at least one, if not multiple, other exemptions under FOIA were likewise asserted.”  “Specifically, when exemption 7(D) was asserted, one or more of exemptions 6, 7(C), or 7(A) was also asserted, which are also valid.”  “Furthermore, without any evidence of bad faith, the court is entitled to presume good faith on behalf of the FBI.”  “Thus, the exemption claimed is sufficiently supported to justify granting summary judgment under FOIA.”

• Exemption 3:  The court relates that “[t]he IRS relies on 26 U.S.C. § 6103(a) which provides that tax returns and return information shall remain confidential except as authorized by Title 26.”  “This statute is contemplated by exemption 3.”  “The IRS used this statute in conjunction with exemption 3 to withhold information that consists of tax return information of those other than the Plaintiff, such as names, SSN or [Employer Identification Number], and discussions of liability.”  “This information was properly withheld.”

• Exemption 7(E):  The court holds that “ICE applied this exemption to protect investigation techniques unique to ICE, specifically those performed by a task force officer in Homeland Security that led to a search and seizure warrant.”  “EOUSA applied this exemption to protect techniques and methodologies used to investigate child pornography and exploitation crimes that are not known to the public, release of which could teach individuals how to evade detection.”  “As such, both agencies properly asserted exemption 7(E) to protect information that would disclose techniques for investigation that could permit circumvention of the law.”

• Litigation Considerations, “Reasonably Segregable” Requirements:  The court relates that “Plaintiff argues that Defendant DOJ has not presented credible evidence that segregable portions of the records have been released.”  The court holds that “[t]he FBI has met its burden to show that it properly considered segregability.”  “Specifically, the FBI has categorized documents by pages they have released in full (‘RIF’), released in part (‘RIP’), and withheld in full (‘WIF’).”  “The FBI goes on to give specific information pertaining to each category and its reasoning for its findings.”  “Furthermore, in multiple places throughout the FBI’s declaration, it has clarified the segregability standard and specified how that standard was implemented.”