13 F. Supp. 3d 92
D.C. Cir.2014Background
- Plaintiff Lawrence Rosenberg (attorney for Sholom Rubashkin) submitted a broad FOIA request to the FBI and other agencies seeking records about the May 12, 2008 Agriprocessors raid and Rubashkin’s prosecution.
- FBI located ~1,233 potentially responsive pages (after duplicates) and released 39 pages in full, 322 in part, withheld 155 in full, and set aside ~450 pages as sealed court materials.
- Plaintiff sued under FOIA challenging the adequacy of the FBI’s search and numerous redactions invoking Exemptions 3, 6, 7(C), 7(D), and 7(E).
- The Court previously granted summary judgment for the FBI on many grounds but held in abeyance issues regarding the adequacy of the search and specific redactions under Exemptions 6, 7(C), 7(D), and 7(E).
- After supplemental (Third Hardy) declaration and in camera review, the Court found the FBI’s CRS search reasonably calculated to find responsive records, upheld most redactions but ordered limited additional disclosures on specific pages (notably Rubashkin-793 and a block Rubashkin-778–792).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of FBI search | FBI failed to search beyond CRS (e.g., ELSUR, hard drives, agent files); CRS-only search not tailored | CRS is the comprehensive system for criminal investigative records; no factual basis suggested records resided elsewhere; searched CRS (including cross-references) and ELSUR not indicated by results | Search was reasonably calculated and adequate; summary judgment for FBI on search adequacy granted |
| Exemptions 6 and 7(C) (privacy of third parties) | FBI over-redacted non-identifying material on 27 pages; plaintiff sought narrower redactions | FBI revised redactions after Court’s order and justified remaining redactions to avoid identification (mosaic effect) | FBI’s revised redactions upheld for 26 of 27 pages; one discrete set of words on Rubashkin-793 ordered released |
| Exemption 7(D) (confidential sources) | FBI’s invocation was conclusory and insufficient to show implied confidentiality for many sources | Given nature/severity of fraud, informants’ proximity to crime, interview circumstances, and risk of reprisal, implied confidentiality is reasonable; in camera review available | 7(D) upheld for the majority of pages after in camera review; but FBI failed for Ru-bashkin-778–792 (15 pages) — those portions must be disclosed except for material protected under 7(C) |
| Exemption 7(E) and Exemption 3/BSA (investigative techniques & bank-secrecy material) | FBI offered bare assertions that disclosure would risk circumvention and that BSA-covered material was involved | Withheld questionnaire and rationale for obstruction-of-justice questioning (7(E)) and records derived from Bank Secrecy Act reports exempt under Exemption 3 | 7(E) upheld for the questioning tool (Rubashkin-734–735); material on Rubashkin-56, -139, -157 treated as Exemption 3 (BSA) and withheld |
Key Cases Cited
- Dep’t of the Air Force v. Rose, 425 U.S. 352 (recognizes FOIA’s disclosure objective and narrow construction of exemptions)
- Milner v. Dep’t of Navy, 562 U.S. 562 (FOIA exemptions are exclusive and construed narrowly)
- Landano v. U.S. Dept. of Justice, 508 U.S. 165 (factors for implied confidentiality under Exemption 7(D))
- Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (search must be reasonably calculated to uncover responsive documents)
- Iturralde v. Comptroller of the Currency, 315 F.3d 311 (search adequacy judged by method, not results)
- Am. Civil Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612 (agency affidavits can support summary judgment if specific and plausible)
- Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504 (agency affidavits describing searches and systems relied upon)
- Roth v. U.S. Dep’t of Justice, 642 F.3d 1161 (detailed public justification and in camera review balance for 7(D))
- Oglesby v. Department of Army, 920 F.2d 57 (requirements for affidavit showing search method and systems examined)
- Mayer Brown LLP v. Internal Revenue Serv., 562 F.3d 1190 (7(E) requires logical demonstration how disclosure might risk circumvention)