Levinthal v. Federal Election Commission
219 F. Supp. 3d 1
| D.D.C. | 2016Background
- In July 2015, plaintiffs (journalist Dave Levinthal and Center for Public Integrity) requested under FOIA the Federal Election Commission’s (FEC) 2015 NIST Study assessing IT vulnerabilities and related records; the FEC produced related non-exempt materials but withheld the study itself.
- The NIST Study, prepared by contractor SD Solutions and summarized in an Office of the Chief Information Officer memorandum with appendices, describes the FEC’s IT architecture, identifies vulnerabilities, and recommends security measures.
- The FEC denied the request for the full study and, on administrative appeal, upheld the withholding; plaintiffs sued in October 2015 seeking disclosure of the study only.
- The FEC moved for summary judgment invoking FOIA Exemptions 7(E) (law enforcement techniques/guidelines whose disclosure could risk circumvention) and 5 (deliberative process); plaintiffs challenged only the 7(E) “compiled for law enforcement purposes” element and argued lack of segregability under Exemption 5.
- The FEC’s CIO (Alec Palmer) submitted a detailed declaration explaining that the study was compiled to protect the FEC’s law-enforcement-capable IT systems, that disclosure would provide a blueprint for attackers and risk circumvention, and that factual material was inextricably intertwined with deliberative recommendations so no segregable, non-exempt portions could be released.
- The court treated the FEC’s factual statements as conceded where plaintiffs failed to properly dispute them, and granted the FEC’s motion for summary judgment, denying plaintiffs’ cross-motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the NIST Study was "compiled for law enforcement purposes" under Exemption 7(E) | Study is not connected to an investigation and thus not compiled for law enforcement | Study assesses and protects IT systems central to FEC enforcement; protecting those systems is a law‑enforcement purpose | Held: Study was compiled for law enforcement purposes (7(E) applies) |
| Whether disclosure would reveal techniques/guidelines and risk circumvention under Exemption 7(E) | Plaintiffs disputed applicability only minimally (argued vulnerabilities might no longer exist) | CIO declaration: study discloses system vulnerabilities and recommendations that could be used to gain unlawful access or manipulate enforcement data | Held: Court accepted FEC’s showing that disclosure would risk circumvention; 7(E) applies |
| Whether Exemption 5 (deliberative process) covers the Study | Plaintiffs conceded predecisional recommendations but sought segregable factual material | FEC argued the factual descriptions are inextricably intertwined with recommendations and would reveal vulnerabilities and solutions | Held: Exemption 5 applies (deliberative process) and factual material is not reasonably segregable |
| Whether FEC met FOIA segregability requirement | Plaintiffs argued FEC failed to show that non-exempt facts were inextricably intertwined | FEC provided a line‑by‑line analysis and detailed justification showing disclosure of facts would reveal recommendations and vulnerabilities | Held: Court found the FEC’s declarations adequate; presumption of compliance stands and no segregable portions must be released |
Key Cases Cited
- SEC v. Banner Fund Int’l, 211 F.3d 602 (D.C. Cir. 2000) (local‑rule facts may be deemed admitted when opponent fails to comply)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (agency affidavits may support FOIA summary judgment if detailed and non‑conclusory)
- Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981) (agency must describe withheld documents and justifications with reasonably specific detail)
- U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (U.S. 1989) (agency determinations under FOIA are reviewed de novo)
- Tax Analysts v. IRS, 294 F.3d 71 (D.C. Cir. 2002) (Exemption 7 not limited to records tied to a specific investigation)
- Blackwell v. FBI, 646 F.3d 37 (D.C. Cir. 2011) (7(E) shielding of methods developed to meet investigative needs)
- Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) (non‑exempt portions must be disclosed unless inextricably intertwined with exempt material)
- Armstrong v. Exec. Office of the President, 97 F.3d 575 (D.C. Cir. 1996) (agency must show with reasonable specificity why factual material is non‑segregable)