Shapiro v. U.S. Department of Justice
153 F. Supp. 3d 253
D.D.C.2016Background
- Plaintiffs (journalists and nonprofit FOIA requesters) sought FBI "processing" records created while the FBI handled earlier FOIA requests: search slips, FDPS case processing notes, and case evaluation forms. Several requests targeted processing records for prior requests about investigative files.
- FBI produced some pages but redacted or withheld many documents and adopted categorical policies: (1) withhold all search slips and FDPS processing notes for FOIA requests tied to investigative files (relying principally on Exemption 7(E) and the FOIA exclusions), and (2) withhold case evaluation forms under Exemptions 2 and 6.
- Agency also invoked various exemptions (5, 6, 7(C), 7(D), 7(E)) and asserted work-product and deliberative-process privileges for particular records.
- Plaintiffs sued for disclosure; the FBI moved for summary judgment and plaintiffs cross-moved. The court considered both the categorical policies and request-by-request withholdings.
- Court rejected the FBI’s categorical policy of withholding all search slips/processing notes (could not be justified by Section 552(c) exclusions or Exemption 7(E)) and rejected a categorical withholding of case-evaluation forms under Exemption 2. The court allowed some targeted withholdings under Exemptions 6 and 7(C) and deferred resolution of segregability, work-product, and deliberative-process claims to allow better factual showing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FBI may categorically withhold all search slips and FDPS processing notes for FOIA requests about investigative files (policy relies on Exemption 7(E) and FOIA exclusions) | Policy is overbroad; most processing records are not exempt/excludable and must be produced. | Necessity: releasing search slips would reveal use of exclusions or sensitive investigations, tipping off subjects and circumvening law; categorical denial needed. | Court: FBI policy invalid. Exclusions and Exemption 7(E) do not authorize categorical withholding of unprotected processing records; denied FBI summary judgment and granted plaintiffs as to policy. |
| Whether FBI may categorically withhold case evaluation forms under Exemption 2 (personnel rules/practices) | Forms document FOIA processing performance and are of public interest; thus do not "relate solely" to personnel matters and are not Low 2; Rose public-interest test applies. | Forms are personnel-management tools used solely for evaluating employees; Exemption 2 and Exemption 6 justify withholding (names redacted under Exemption 6). | Court: Denied FBI categorical claim under Exemption 2. Names may be withheld under Exemption 6; remainder not categorically exempt because forms bear public-interest information (Rose controls). |
| Whether records about third parties (processing notes for others’ FOIA requests) must be withheld under Exemptions 6/7(C) or are waived by prior public Hardy declarations (official-acknowledgment) | Plaintiffs: Hardy declarations publicly describe searches; official-acknowledgment doctrine requires disclosure of matching processing material. | FBI: many details in processing records were not publicly disclosed; SafeCard rule and Exemptions 6/7(C) protect third-party identities and private investigative details. | Court: FBI may withhold information not already officially disclosed; official-acknowledgment requires close match which plaintiffs did not show. But agency must address segregability: produce non-exempt portions unless inextricable. |
| Whether particular asserted privileges/exemptions (work product, Exemption 5 deliberative process) were properly invoked for documents produced/withheld in specific requests | Plaintiffs: FBI overclaims privileges; some withheld docs are ordinary processing records (not privileged or predecisional) and should be produced. | FBI: withheld items were prepared in anticipation of litigation (work product) or are predecisional/deliberative and privileged (Exemption 5); some redactions justified under Exemptions 6/7(C). | Court: Denied summary judgment on these discrete claims to permit supplemental, non-conclusory factual declarations and a Vaughn-like index addressing segregability and the factual basis for privilege assertions; allowed FBI to refile. |
Key Cases Cited
- Department of the Air Force v. Rose, 425 U.S. 352 (1976) (Exemption 2 does not cover records of significant public interest)
- Milner v. Department of the Navy, 562 U.S. 562 (2011) (Exemption 2 must be read narrowly to cover personnel/human-resources matters only)
- FBI v. Abramson, 456 U.S. 615 (1982) (construction of FOIA exemptions in context of law enforcement materials)
- Phillippi v. Central Intelligence Agency, 546 F.2d 1009 (D.C. Cir. 1976) (origin of Glomar "neither confirm nor deny" doctrine)
- SafeCard Services, Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (agencies may rely on relatively detailed, non-conclusory affidavits to support FOIA withholdings)
- Center for National Security Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003) (mosaic analysis and aggregated disclosure consequences under FOIA)
- ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013) (official-acknowledgment doctrine and limits on Glomar responses)