82 F. Supp. 3d 307
D.D.C.2015Background
- In June 2011 EPIC filed FOIA requests to FBI, the DOJ Criminal Division (CRM), and DOJ National Security Division (NSD) seeking records about government investigatory activity relating to WikiLeaks and its supporters (including lists, communications with internet/financial companies, and targeted surveillance).
- FBI searched its Central Records System using "WikiLeaks," broadened the inquiry by contacting case agents, located investigative files, and withheld responsive materials under FOIA Exemption 7(A). CRM requested clarification, located responsive records, and withheld them under Exemption 7. NSD limited its search to the lead Counterespionage Unit attorney’s electronic files and withheld records under Exemption 7(A).
- EPIC sued contesting the adequacy of searches (particularly NSD and FBI) and the agencies’ withholdings; the parties filed cross-motions for summary judgment and defendants submitted both public and ex parte declarations.
- The government represents the investigation into the unauthorized disclosure of classified materials published on WikiLeaks is ongoing; certain court materials (e.g., relating to Twitter subpoenas) have been publicly disclosed.
- The court evaluated adequacy of searches (Weisberg/Valencia–Lucena standard), whether withheld records were "compiled for law enforcement purposes," whether disclosure could reasonably be expected to interfere with enforcement proceedings (Exemption 7(A)), segregability, and whether in camera review was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of NSD search | NSD limited search to a single lead attorney’s files, provided no search terms or systematic method; thus search was inadequate | NSD says lead attorney’s files encompassed all responsive material and ex parte declaration explains details (disclosure would harm investigation) | Search inadequate: NSD must conduct a more systematic search and provide detailed affidavit showing methods/search terms |
| Adequacy of FBI search | FBI used only the single term "WikiLeaks" and thus may have missed responsive records | FBI began with "WikiLeaks," then used CRS results to identify case agents and had agents search investigative files; search was reasonably calculated | Search adequate: FBI's CRS query plus agent follow-up satisfied FOIA search requirements |
| Withholding under Exemption 7(A) (law enforcement nexus & interference) | EPIC: records may concern lawful First Amendment activity; Exemption 7(A) cannot shield records about people merely supporting WikiLeaks; some related materials already public | Agencies: responsive records arise from active investigation into unauthorized disclosure of classified information; disclosure could reveal techniques, witnesses, scope and thereby interfere with ongoing enforcement | Held: FBI and CRM properly withheld responsive records under Exemption 7(A); agencies met law-enforcement nexus and interference showing; public documents already released must be produced but nonpublic investigatory records may be withheld |
| Segregability & In camera review | EPIC: agencies failed to segregate and release nonexempt portions and asks for in camera review to check exemptions | Agencies: reviewed records and conclude no reasonably segregable, nonexempt material; ex parte Vaughn index and declarations suffice; no bad faith shown | Held: agencies showed adequate justification that records are nonsegregable; court declines in camera review absent showing of bad faith or insufficient declarations |
Key Cases Cited
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.) (describing agency affidavit/Vaughn index requirements)
- Center for National Security Studies v. United States Dep’t of Justice, 331 F.3d 918 (D.C. Cir.) (Exemption 7(A) interference standard and deference for national security assertions)
- John Doe Agency v. John Doe Corp., 493 U.S. 146 (Sup. Ct.) (FOIA balance between disclosure and legitimate confidentiality interests)
- Valencia–Lucena v. United States Coast Guard, 180 F.3d 321 (D.C. Cir.) (affidavit must describe search terms and search performed)
- Oglesby v. United States Dep’t of the Army, 920 F.2d 57 (D.C. Cir.) (search affidavit requirements)
- Pratt v. Webster, 673 F.2d 408 (D.C. Cir.) (Exemption 7 threshold and nexus test)
- Campbell v. Dep’t of Justice, 164 F.3d 20 (D.C. Cir.) (deference to law enforcement agencies for Exemption 7 threshold)
- Citizens for Responsibility & Ethics in Washington v. Dep’t of Justice, 746 F.3d 1082 (D.C. Cir.) (Exemption 7(A) pending/anticipated enforcement proceeding analysis)
- Mead Data Central, Inc. v. United States Dep’t of the Air Force, 566 F.2d 242 (D.C. Cir.) (segregability principle)
- SafeCard Services, Inc. v. SEC, 926 F.2d 1197 (D.C. Cir.) (presumption of agency good faith in affidavits)