160 F. Supp. 3d 226
D.D.C.2016Background
- CREW submitted a FOIA request (June 26, 2013) seeking records on FBI drone/UAV use (sources, funding, training, policies) from Jan 1, 2009 onward; expedited processing was denied.
- FBI searched, identified 6,720 responsive non-duplicative pages, and released 1,970 pages in whole or part; the remainder were withheld under multiple FOIA exemptions and catalogued in a Vaughn index.
- DOJ (FBI) invoked Exemptions 1, 3, 4, 5, 6, 7(C), and 7(E); CREW challenged Exemptions 1, 3, 4, 5, and 7(E) and alleged insufficient segregation of non-exempt material.
- The district court found the FBI’s search reasonable and focused the dispute on whether the asserted exemptions and segregability determinations were properly applied.
- The court granted summary judgment to DOJ in full, denying CREW’s cross-motion and upholding withholdings under Exemptions 1, 3, 4, 5, and most of 7(E), while rejecting DOJ’s overly broad “tradecraft” rationale under 7(E).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Exemption 1 (classified national-security/intel info) | CREW: request concerns domestic drone use and thus does not implicate foreign intelligence or classified sources/methods | DOJ: withheld material pertains to intelligence activities, sources/methods and foreign activities; disclosure would harm national security | Held: DOJ met burden; Exemption 1 applies to the challenged withholdings |
| Applicability of Exemption 3 (statutory protection for intel sources/methods) | CREW: NSA §102A protects foreign-intel only; domestic drone records fall outside | DOJ: withheld material reveals intelligence sources/methods (including foreign counterintelligence) protected by NSA | Held: DOJ established that Exemption 3 (NSA §102A) covers withheld material |
| Applicability of Exemption 4 (confidential commercial info) | CREW: information is not confidential and some materials are public | DOJ: solicitation, pricing, manuals, and training docs would cause substantial competitive harm and impair gov’t procurement | Held: DOJ showed substantial competitive harm for solicitation materials and vendor manuals/training; Exemption 4 applies |
| Applicability of Exemption 5 (deliberative process privilege) | CREW: DOJ failed to show nondisclosure of factual material incorporated in final agency decisions | DOJ: documents are predecisional and deliberative; privileged; agency re-reviewed for segregability | Held: Exemption 5 applies to the withheld deliberative documents; CREW’s challenge rejected |
| Applicability of Exemption 7(E) (law-enforcement techniques/guidelines) | CREW: many technical/capability/vendor items are publicly known; DOJ parrots exemption language | DOJ: disclosure of operational capabilities, vendor IDs, training, funding, specs would reveal techniques/procedures and risk circumvention | Held: Court applied D.C. Cir. precedent (7(E) risk requirement covers techniques) and upheld withholdings for specific categories (capabilities, specs, vendor IDs, training, funding) but rejected DOJ’s sweeping “tradecraft” catch-all |
| Segregability of non-exempt information | CREW: FBI issued blanket assertions; withheld documents likely contain segregable factual material (e.g., FAA COAs) | DOJ: detailed Vaughn index + affidavits showing line-by-line review and that non-exempt material is intertwined/unsegregable | Held: Agency met its burden; CREW failed to rebut presumption that segregable material was released |
Key Cases Cited
- Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871 (D.C. Cir. 1992) (test for confidentiality under Exemption 4; voluntary vs. involuntary submissions)
- Milner v. Department of the Navy, 562 U.S. 562 (2011) (FOIA’s goal is broad disclosure; exemptions construed narrowly)
- CIA v. Sims, 471 U.S. 159 (1985) (scope of intelligence-sources protection)
- Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771 (D.C. Cir. 2002) (Vaughn index and segregability sufficiency)
- Blackwell v. FBI, 646 F.3d 37 (D.C. Cir. 2011) (Exemption 7(E) and applicability of risk-of-circumvention requirement)
- Public Employees for Environmental Responsibility v. U.S. Section, Int'l Boundary & Water Comm'n, U.S.-Mexico, 740 F.3d 195 (D.C. Cir. 2014) (threshold and scope of Exemption 7 analysis)
- Judicial Watch, Inc. v. U.S. Dep't of Defense, 715 F.3d 937 (D.C. Cir. 2013) (meaning of ‘pertains’ for classification claims)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment standard)