Shapiro v. United States Department of Justice
239 F. Supp. 3d 100
| D.D.C. | 2017Background
- Plaintiffs (journalists and advocacy orgs) filed FOIA requests seeking FBI "processing records" (search slips, processing notes, file numbers) created when the FBI responded to prior FOIA requests; litigation has produced multiple earlier opinions (Shapiro I–III).
- The FBI originally had a categorical 25‑year policy withholding processing records for investigative matters; the Court rejected that blanket approach as inconsistent with FOIA.
- The FBI narrowed its stance to a "targeted" case‑specific defense: withholding processing records for 42 "No Records" responses tied to a cluster of domestic‑terrorism/animal‑rights requests, invoking Exemption 7(E) and other exemptions/privileges.
- Key disputed issues included: (1) whether Exemption 7(E) shields those search/processing records and certain file numbers; (2) the applicability of Exemption 7(A) to the Hyram Kitchen murder records; (3) Exemptions 1 and 3 for classified/intelligence material; (4) Exemption 5 (attorney work product and deliberative process) for notes created because of litigation; and (5) segregability/official‑acknowledgment arguments.
- The Court permitted the FBI to file an ex parte, in camera supplemental declaration (Hardy) and reviewed it, finding sensitive material properly submitted in camera; it ordered further briefing and a sampling procedure to test segregability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ex parte, in camera declaration | FBI should not be allowed to submit secret affidavits or they contain legal conclusions | FBI needs in camera material to support national‑security/privacy withholding claims | Court allowed FBI to file Hardy's 8th declaration in camera/ex parte and denied plaintiffs' motion to unseal/strike |
| Exemption 7(E) for "No Records" search slips/processing notes | Plaintiffs: FBI's categorical withholding was impermissible; limited withholding still must be justified | FBI: targeted withholding for 42 "No Records" responses risks revealing techniques/guidelines and a mosaic that would permit circumvention | Court: granted FBI summary judgment as to 7(E) for those 42 "No Records" processing records (mosaic risk shown) |
| Exemption 7(E) for sensitive file/case numbers | Plaintiffs: file numbers are administrative, not compiled for law‑enforcement techniques; any risk can be cured by redacting originating office | FBI: file numbers reveal investigative priorities/locations and could create a "heat map" enabling circumvention | Court: found 7(E) can apply in theory but denied summary judgment to both sides on 122 pages of file numbers; ordered additional evidence/briefing and consideration of redacting origin office |
| Exemption 7(A) as to Hyram Kitchen murder records | Plaintiffs: investigation closed >25 years ago; 7(A) inapplicable | FBI: conceded investigation closed and did not assert 7(A); continues to assert 7(E) for file numbers | Court: granted plaintiffs summary judgment on 7(A) for Kitchen processing records; denied summary judgment on any related file numbers per file‑number analysis |
| Exemption 1 (classified records) | Plaintiffs: question whether classification post‑request and whether procedural standards met | FBI: records properly classified pre‑request; Hardy explains RIDS review and markings | Court: accepted FBI's showing and granted summary judgment for Exemption 1 withholding |
| Exemption 3 (National Security Act) | Plaintiffs: FBI's Exemption 3/National Security Act claim too conclusory | FBI: invoked NSA to protect intelligence sources/methods; offered declarations | Court: denied summary judgment to both sides on Exemption 3; ordered FBI to submit a supplemental, non‑conclusory declaration |
| Exemption 5 (attorney work product / deliberative) – McGehee litigation materials | Plaintiffs: records would exist absent litigation; should not be protected | FBI: records created because of litigation and differ materially from ordinary processing records; therefore protected as work product/deliberative | Court: granted FBI summary judgment for Stein as to records prepared because of McGehee (work product/deliberative), because they were created due to litigation and differ materially |
| Exemption 5 (deliberative) – Zubaydah/Truthout processing notes | Plaintiffs: FBI waived a blanket deliberative‑process claim; specific notes not shown to be deliberative | FBI: some notes reflect litigation strategy/deliberations | Court: granted FBI summary judgment only for those notes shown to reflect deliberations about litigation strategy; requires segregation of factual material |
| Segregability / official‑acknowledgment for third‑party processing notes | Plaintiffs: prior public declarations disclosed much of the same info; FBI should segregate and release matching material | FBI: conducted segregability review and says remaining non‑public material is inextricably intertwined | Court: denied summary judgment; ordered FBI to produce a redacted sample (random FOIA request 1146761) and permitted renewed motions after review |
Key Cases Cited
- Maydak v. U.S. Dep’t of Justice, 218 F.3d 760 (D.C. Cir. 2000) (standards for allowing late‑asserted FOIA exemptions/remand)
- FBI v. Abramson, 456 U.S. 615 (Sup. Ct. 1982) (Exemption 7 protects records that reproduce law‑enforcement materials)
- CIA v. Sims, 471 U.S. 159 (Sup. Ct. 1985) (mosaic theory: small pieces of data may reveal sensitive intelligence)
- PHE, Inc. v. U.S. Dep’t of Justice, 983 F.2d 248 (D.C. Cir. 1993) (agency must demonstrate how release might risk circumvention)
- Pub. Employees for Envt’l Resp. v. U.S. Section, Int’l Boundary & Water Comm’n, 740 F.3d 195 (D.C. Cir. 2014) (risk‑of‑circumvention requirement applies to techniques and to guidelines)
- Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981) (affidavits re: classified information entitled to substantial weight)
- Church of Scientology of Cal. v. Turner, 662 F.2d 784 (D.C. Cir. 1980) (Exemption 3 requires detailed, nonconclusory description)
- United States v. Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010) (work‑product test: prepared because of the prospect of litigation)
- FTC v. Boehringer Ingelheim Pharm., Inc., 778 F.3d 142 (D.C. Cir. 2015) (documents prepared ‘‘in substantially similar form’’ absent litigation are not protected)