Reporters Committee for Freedom of the Press v. Federal Bureau of Investigation
877 F.3d 399
| D.C. Cir. | 2017Background
- In 2007 FBI agents used a fake Associated Press article and malware (CIPAV) to identify the sender of bomb threats at Timberline High School; the tactic later became public and prompted controversy.
- The Reporters Committee for Freedom of the Press and the Associated Press submitted FOIA requests seeking (1) FBI policies on media impersonation and (2) records about Timberline and any other instances where fake news links delivered malware.
- The FBI conducted a two-phase search: targeted searches of selected internal divisions (with Group One—broader malware-via-media requests—searched only in the Tech Division) and a limited search of the Central Records System (the Index).
- The FBI produced some Timberline records but reported no other instances of media impersonation; the Records Section’s declarations (Hardy) described the searches only at a high level.
- The district court granted summary judgment for the FBI; the D.C. Circuit reversed, holding the FBI’s declarations and search effort were insufficiently detailed to support summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FBI’s search met FOIA’s adequacy standard (Oglesby) | FBI failed to show a good-faith, reasonably calculated search; declarations lack specific search terms/methods | Agency contends targeted searches of specific offices suffice; affidavit need not detail every step | Reversed: agency must provide reasonably detailed affidavit describing search terms, systems, and methods to support summary judgment |
| Whether Hardy declarations sufficiently described targeted searches | Declarations are too vague—do not state which files/systems were searched or what search terms were used | Declarations plus division confirmations are adequate; FOIA request was amorphous so detailed terms unnecessary | Reversed: affidavits must identify how component offices actually searched and what they searched for; generic statements are inadequate |
| Whether limiting Group One search to Tech Division was reasonable | FBI illogically limited Group One (malware via media) to Tech Division despite other divisions being involved in Timberline | FBI says Tech Division solely responsible for malware deployment, so other divisions unlikely to hold malware-related records | Court found FBI failed to justify excluding divisions that were identified as likely to hold Timberline-related records; needs explanation or further search |
| Whether FBI should have searched the Director’s Office and other field/offices | Director’s Office was publicly engaged (Comey letter); failing to search was a clear missed lead; other offices and OIG contributors may hold records | FBI relied on cutoff dates and argued other references were not clear leads showing use of media impersonation elsewhere | Court: failure to search Director’s Office was problematic given its obvious involvement; other leads (regional offices, OIG) were not shown to be clear, certain leads prior to cutoff dates |
Key Cases Cited
- Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57 (D.C. Cir. 1990) (agency must show good-faith, reasonably calculated search; affidavit should set out search terms and methods)
- Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir. 1999) (summary judgment inappropriate when there are positive indications of overlooked materials)
- Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007) (affidavit must describe component search strategies and results)
- DeBrew v. Atwood, 792 F.3d 118 (D.C. Cir. 2015) (identifying offices tasked with searches insufficient absent detail about search terms and methods)
- Aguiar v. Drug Enforcement Admin., 865 F.3d 730 (D.C. Cir. 2017) (affidavit must explain how offices searched within identified files)
- Weisberg v. DOJ, 627 F.2d 365 (D.C. Cir. 1980) (affidavit must identify which files were searched and by whom)
- Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) (affidavit must explain scope and method of search in reasonable detail)
- Kowalczyk v. DOJ, 73 F.3d 386 (D.C. Cir. 1996) (agency must pursue obvious leads; only rare cases permit ignoring an apparent lead)
- Hodge v. FBI, 703 F.3d 575 (D.C. Cir. 2013) (adequacy of search is measured by methods used, not solely by results)
- Iturralde v. Comptroller of the Currency, 315 F.3d 311 (D.C. Cir. 2003) (same principle: appropriateness of methods controls search adequacy)
- Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015) (search is not unreasonable merely because it fails to produce all relevant material)
- Founding Church of Scientology v. NSA, 610 F.2d 824 (D.C. Cir. 1979) (positive indications of overlooked materials preclude summary judgment)
- Judicial Watch, Inc. v. FBI, 522 F.3d 364 (D.C. Cir. 2008) (FOIA disclosure purpose and summary of agency obligations)
- Department of State v. Ray, 502 U.S. 164 (U.S. 1991) (FOIA’s disclosure purpose)