236 F. Supp. 3d 268
D.D.C.2017Background
- Reporters Committee for Freedom of the Press and the Associated Press filed FOIA requests seeking records about the FBI's alleged practice of impersonating news media (including the Timberline High School/CIPAV matter) and related policies, training, and counts of such impersonations.
- The FBI consolidated and processed the requests (designated as three request numbers), released 83 pages in full and 103 pages in part, and withheld material under FOIA Exemptions 1, 3, 5, 6, 7(C), and 7(E).
- Plaintiffs sued, alleging untimely responses, an inadequate search, and improper withholdings; the parties filed cross-motions for summary judgment.
- The FBI supported its search and withholdings with sworn declarations (including classified-material certification by an original classification authority) and a Vaughn index.
- The Court reviewed adequacy of search, applicability of asserted FOIA exemptions, and segregation of non-exempt material; it granted the FBI summary judgment and denied plaintiffs’ motions (including request for in camera review).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of search | FBI split requests improperly and used narrow terms/cutoffs; additional files likely exist | FBI conducted reasonably calculated searches in divisions likely to hold responsive records (OTD, CRS, ELSUR) and used appropriate terms and date-of-search cutoffs | Search was adequate; FBI met its burden with detailed declarations and plaintiffs' speculation insufficient |
| Exemption 1 (classified info) | DOJ must justify classification | Original classification authority attests material is properly classified and disclosure would harm national security | Exemption 1 applies; court defers to executive judgment and denies disclosure |
| Exemption 3 (National Security Act) | Withheld info not shown to fall within statute's coverage | Withheld information pertains to intelligence sources/methods and is covered by the Act | Exemption 3 applies to withheld material under the National Security Act |
| Exemption 5 (deliberative process & attorney-client) | Redactions are not pre-decisional or confidential | Redacted emails and report contain pre-decisional advice, legal deliberations, and advisory recommendations | Exemption 5 applies; deliberative process and attorney-client privileges protect redacted portions |
| Exemptions 6 & 7(C) (privacy) | Public interest in FBI practices outweighs privacy interests | Identifying law-enforcement/support personnel would invade privacy and risk harassment; little public interest gained by naming individuals | Exemptions 6 and 7(C) apply; privacy interests prevail over plaintiffs' generalized public-interest claim |
| Exemption 7(E) (techniques/procedures) | FBI must provide more detail to justify withholding | Disclosure of operational directives, CIPAV deployment details, secure contact info, collection methods could enable circumvention of law | Exemption 7(E) applies to multiple categories; FBI adequately explained logical risk of circumvention |
| Segregability | FBI failed to segregate nonexempt material sufficiently | FBI reviewed pages line-by-line and disclosed all reasonably segregable nonexempt portions; withheld portions intertwined with protected material | FBI satisfied segregability obligations; Vaughn index and declarations adequate |
Key Cases Cited
- DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir. 2015) (standard for adequacy of FOIA search)
- Brayton v. U.S. Trade Representative, 641 F.3d 521 (D.C. Cir. 2011) (summary judgment in FOIA cases)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (agency affidavits and presumption of good faith)
- Hodge v. FBI, 703 F.3d 575 (D.C. Cir. 2013) (speculation insufficient to defeat search adequacy)
- Larson v. U.S. Dep't of State, 565 F.3d 857 (D.C. Cir. 2009) (deference to executive affidavits predicting national security harm)
- Murphy v. Exec. Office for U.S. Attorneys, 789 F.3d 204 (D.C. Cir. 2015) (agency's burden to show withheld documents are exempt)
- Blackwell v. FBI, 646 F.3d 37 (D.C. Cir. 2011) (7(E) requires logical explanation of circumvention risk)
- CIA v. Sims, 471 U.S. 159 (U.S. 1985) (National Security Act meets Exemption 3 requirements)