Associated Press v. Federal Bureau of Investigation
Civil Action No. 2016-1850
| D.D.C. | Sep 30, 2017Background
- In 2016 the FBI obtained a tool from an outside vendor to unlock the iPhone of a San Bernardino terrorism suspect; news accounts and Director Comey commented publicly about the tool and its high cost.
- Associated Press, Gannett/USA Today, and Vice filed FOIA requests seeking (narrowed on summary judgment) the vendor’s identity and the purchase price.
- The FBI produced most responsive pages but withheld certain material under FOIA Exemptions 1, 3, 4, 6, 7(C), and 7(E); plaintiffs pressed only vendor identity and price on summary judgment.
- The FBI invoked Exemptions 1 (classified/national security), 3 (statutory protections for intelligence sources/methods), and 7(E) (law‑enforcement techniques risking circumvention) as to both items, and Exemption 4 (confidential commercial information) as to price.
- Plaintiffs moved to supplement the record with Comey’s May 3, 2017 Senate testimony; the court granted supplementation but found Comey’s public comments did not satisfy the strict test for official disclosure to overcome the exemptions.
- The court granted the FBI summary judgment: Exemptions 1, 3, and 7(E) independently apply to vendor identity and price; Exemption 4 does not apply to the price.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether vendor identity may be withheld under Exemption 1 (national security) | Comey already disclosed high‑level info about the tool/price, so naming the vendor poses no added national‑security risk | Disclosure would allow adversaries to analyze vendor work, discover weaknesses, and develop countermeasures; release could enable exploitation of vendor systems | Withheld: Exemption 1 applies — agency affidavit is logical and plausible; naming the vendor could harm national security |
| Whether purchase price may be withheld under Exemption 1 | Public statements gave a ballpark (very high) so exact price disclosure adds no new harm | Exact price is a detail that can help adversaries infer tool capabilities and FBI priorities, risking national‑security harm | Withheld: Exemption 1 applies — Comey’s statements did not meet the strict test for official disclosure |
| Whether vendor identity and price fall within Exemption 3 (intelligence sources/methods) | Plaintiffs contend public disclosure undermines the claim that the info "relates" to sources/methods | The tool is an intelligence source/method; identity/price could lead to disclosure of the method or capabilities | Withheld: Exemption 3 applies — information relates to protected intelligence sources/methods |
| Whether vendor identity and price may be withheld under Exemption 7(E) (techniques/risks of circumvention) | Plaintiffs argue circumvention risks are minimal because Comey revealed limit (iPhone 5C/iOS9) and price range | Even partial public disclosures do not reveal technique; identity/price could let adversaries assess and develop countermeasures; Exemption 7(E) requires only a reasonably expected risk | Withheld: Exemption 7(E) applies — disclosure would create a reasonable risk of circumvention |
| Whether purchase price is protected under Exemption 4 (confidential commercial info) | Plaintiffs argue price is not confidential and public interest favors disclosure | FBI contends disclosure would harm vendor’s competitive position and deter future cooperation | Released: Exemption 4 does not apply — price was a required contract submission, and agency failed to show actual competition or likely substantial competitive injury |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
- ACLU v. U.S. Dep’t of Def., 628 F.3d 612 (D.C. Cir. 2011) (agency affidavits can support FOIA withholding if reasonably detailed and non‑conclusory)
- Larson v. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009) (standards for Exemption 1/official disclosure scrutiny)
- Moore v. CIA, 666 F.3d 1330 (D.C. Cir. 2011) (strict test for when prior public disclosure compels release)
- Mayer Brown LLP v. IRS, 562 F.3d 1190 (D.C. Cir. 2009) (Exemption 7(E) requires only a reasonably expected risk of circumvention)
- Sims v. CIA, 471 U.S. 159 (1985) (Exemption 3/analysis of exempting statutes)